Water supply and sanitation in South Africa is characterised by both achievements and challenges. After the end of Apartheid South Africa’s newly elected government inherited huge services backlogs with respect to access to water supply and sanitation. About 15 million people were without safe water supply and over 20 million without adequate sanitation services.

Governments Commitment

The government thus made a strong commitment to high service standards and to high levels of investment subsidies to achieve those standards. Since then, the country has made satisfactory progress with regard to improving access to water supply.

It reached universal access to an improved water source in urban areas, and in rural areas the share of those with access increased from 62 percent to 82 percent from 1990 to 2006. South Africa also has a strong water industry with a track record in innovation.

However, much less progress has been achieved on sanitation: Access increased only from 55 percent to 59 percent during the same period. Significant problems remain concerning the financial sustainability of service providers, leading to a lack of attention to maintenance.

The uncertainty about the government’s ability to sustain current funding levels in the sector is also a concern.

Some important features that distinguish water policies and institutions in South Africa from most other countries in the world are the following:

 The existence of water institutions between the national and local government in the form of Water Boards;

 Strong linkages between water supply and sanitation on the one hand and water resources management on the other hand through these Water Boards; and

 A policy of free basic water and sanitation.

Water Availability

Water availability in South Africa varies greatly in space and time. While the plateau is arid with rainfall only during the summer and as low as 100mm, the Southeast receives rainfall throughout the year with an average of up to 1,000mm.

Total annual surface runoff is estimated at 43 to 48 km³, depending on the source. However, much of the runoff is lost through flood spillage, so that the available surface water resources are estimated at 14 km³/year only. Although groundwater is limited due to geologic conditions, it is extensively utilized in the rural and more arid areas. Available groundwater is estimated at 1 km³/year.

The main rivers of South Africa are the Orange River draining to the Atlantic Ocean, the Limpopo River, the Tugela River, the Olifants River (Mpumalanga), and the Breede River. The four latter all drain to the Indian Ocean.

Total annual water withdrawal was estimated at 12.5 km³ in 2000, of which about 17 percent was for municipal water use. In the northern parts of the country, both surface water and groundwater resources are nearly fully developed and utilised. On the contrary, in the well-watered southeastern regions of the country significant undeveloped and little-used resources exist.

The Gauteng area around Johannesburg, which is very water scarce, receives water from various dams in the area such as the Vaal Dam and imports water from the Orange River system through the Lesotho Highlands Water Project, in particular from the Katse Dam. Cape Town receives its drinking water from an extensive system of rivers and dams, including the Berg River Dam.

water availability

In seeking to use judicial means to achieve real and focused practical results, it is important to take full cognisance of all the issues surrounding water and sanitation related concerns in South Africa. Access to safe water is crucial to sustain human life.

Poor Quality of Water Supply

If a country’s water supply and sanitation is not sufficient or is of poor quality, diseases such as cholera and diarrhea will be common. The causes of infant and child deaths provide a good indication of whether water supply and sanitation is adequate and sufficient.

Due to the importance of water and sanitation to the survival, quality of life, health and development of children, one of the Millennium Development Goals is to halve, by 2015, the proportion of people without sustainable access to safe water and basic sanitation.

The South Africa: Millennium Development Goals Country Report indicates that South Africa is well on track to meet these goals and targets, with the proportion of households having access to clean water increasing from 60% in 1995 to 85% in 2003. Between 1994 and 2004, 10 million people gained access to basic clean water supply. Access to sanitation increased from 49% of households in 1994 to 63% in 2003.

In South Africa, the 1994 White Paper on Water Supply and Sanitation provides definitions for basic water supply and states that water “should be in accordance with currently accepted minimum standards with respect to health-related chemical and microbial contaminants.

It should be acceptable to consumers in terms of its taste, odour and appearance.” A basic sanitation facility is defined, in the Strategic Framework for Water Services, as “the infrastructure necessary to provide a sanitation facility which is safe, reliable, private, protected from the weather and ventilated, keeps smells to a minimum, is easy to keep clean, minimises the risk of the spread of sanitation related diseases by facilitating the appropriate control of disease carrying flies and pests, and enables safe and appropriate treatment and/or removal of human waste and wastewater in an environmentally sound manner”.

Statistics from the Department of Water Affairs (DWAF) and Forestry (now the Department of Water and Environmental Affairs) indicate that approximately 14% of residents in South Africa do not have access to water that complies with the department’s water quality management standard.

Children’s Rights Organisation

The children’s rights organisation Children Count, which looks, among other things, at children’s access to safe and reliable drinking water, argues that only 63% of children have access to adequate water. The organisation finds that there are striking provincial differences in the provision of water and that children living in formal areas are more likely than those living in informal or traditional dwellings to have access to water.

However, due to increasing populations, particularly in towns and cities, even the most capacitated municipalities are struggling to deliver water services to all its inhabitants, while at the same time continuing to provide good quality services and maintenance of existing infrastructure.

The state’s goal was to provide adequate sanitation to all and eradicate the bucket system by 2007. The proportion of people without adequate toilet facilities, however, remains worryingly high.

Children Count has found that nearly 8 million children still use unventilated pit latrines, buckets or open land. The Centre for Applied Legal Studies recently made a submission to the South African Human Rights Commission on the access to water and sanitation in South Africa.

Six Challenges Realising Water Access

In this submission, the centre identified six challenges in realising access to water and sanitation:

1. Eradicating backlogs by extending water services to those with none and improving levels of service by providing increasingly better levels of service to those with rudimentary access;
2. Supplying free basic services (free basic water and free basic sanitation) across all municipalities according to national standards;
3. Substituting the use of the indigent policy as a mechanism for targeting free basic services with the recommended mechanism of universal allocation;
4. Setting tariffs in a way that allows for national standardisation while ensuring local appropriateness;
5. Developing a principled approach to water disconnection and restriction, emphasising equity and human rights consideration while finding ways of avoiding water debt in the first place; and
6. Resolving problems with water quality including systemic change such as improved interaction between the health and water departments, DWAF’s role in monitoring and enforcing water quality standards and problems with water quality monitoring at the local level.

Media reports on the failure of municipalities to fulfill their obligations to deliver adequate water and sanitation services are on the increase. These reports include allegations of the serious pollution of our rivers by human waste and children dying from polluted drinking water.

Many of the problems with water services are attributed to the failure of local government to properly maintain and operate sewage treatment infrastructure; it is argued that infrastructure is strained and aging water services provision capacity limited.

There have also been recent media reports on municipal sewage works operating without the necessary permits. Other reports have documented the country’s failure to maintain bulk water infrastructure, which poses a serious threat to the country’s future access to water.

It has been argued that targets for delivering new infrastructure have been prioritised over systems to operate and sustain existing systems. With a growing scarcity in management, engineering and technical skills and municipalities struggling to obtain adequate finances, there are serious concerns about the ability of municipalities to fulfill their obligations to deliver water services.

Service Delivery Backlogs

Subsequently South Africa, despite its progress in delivering water services, also faces serious backlogs in delivering services, particularly in rural areas and informal settlements. Affected communities have reacted against poorly managed municipalities through service delivery strikes.

These communities blame service failure on municipal mismanagement and corruption. Where resources are available, civic organisations such as ratepayers’ associations have taken legal actions against failing municipalities.

Through structural interdicts, these organisations are trying to force municipalities to deliver where they are not. National and provincial governments are likewise looking for legal remedies to compel local governments to deliver.

This legal review looks at available legal remedies such as court interdicts, but also looks comprehensively at the problem of service delivery and proposes interventions that use the statutory framework for water services to compel all three spheres of government to better coordinate their actions for improved water services.

Indignity and Life Threatening Conditions

The indignity and life threatening conditions of accessing a toilet – the most basic of human needs – is one of the deepest and most shameful legacies of apartheid.

A minority of informal settlement residents in South Africa have access to a decent toilet. The vast majority are still forced to use temporary, undignified facilities such as chemical toilets, container toilets, porta potties, buckets, and inadequate, unsafe communal toilets far from their homes. Many have no facilities at all.

On 12 February 2016, the Minister of Water and Sanitation, Nomvula Mokonyane, Gazetted a Draft National Sanitation Policy. To date there has been no single, substantive policy regulating sanitation provision in South Africa, leaving implementation haphazard and without basic standards.

The legal and policy framework for basic sanitation in South Africa has evolved over the past two decades. While the right to basic sanitation is not openly provided for in the Constitution, it intersects with a number of clauses in the Bill of Rights including the right to housing.

Policy documents adopted over the years also recognise sanitation as a basic right. These include the White Paper on Water Supply and Sanitation (1994), The White Paper on National Water Policy of South Africa (1997) and the White Paper on Basic Household Sanitation (2001).

The Water Services Act of 1997 – the main legislation relating to water and sanitation in South Africa – explicitly refers to the “right of access to basic water and basic sanitation” and this is subject to the principle of progressive realisation.

In 2012 the Department of Human Settlements reviewed these policies and developed the 2012 Draft National Sanitation Policy (2012 Policy). The 2012 policy was not Gazetted and has only now, four years later, been developed into the draft national policy introduced in 2016.

The 2016 draft policy includes policy positions on three main areas – equity, institutions and sustainability. The draft policy has its limits and requires input from many organisations and people to make sure that the final document that is adopted is appropriate and effective.

However, there are important aspects of the draft policy that are worth mentioning.

First, the policy commits the Minister to developing norms and standards for sanitation in informal settlements.

Second, the policy begins to shift away from treating informal settlements as temporary, emergency environments, to dealing with the reality that they are long standing, established communities that require permanent infrastructure and long-term planning.

Up to now the policy gap has meant that many municipalities use the Emergency Housing Program to determine levels of sanitation provision in non-emergency circumstances and provide temporary services on an ad-hoc, often chaotic, basis.

One of the notable gaps with this draft policy is that there are no time-frames. Time-frames are important for accountability especially in the many instances where the Minister promises that she will develop norms and standards.