New bill must ensure clean drinking water


By Steve Kretzmann, GroundUp

Almost two-thirds of municipalities (94 out of 144) that provided water to residents in 2022 failed to provide clean drinking water. In 61 municipalities, the state of water treatment and supply was “critical” according to the latest Blue Drop report. Nevertheless, the Department of Water Affairs and Sanitation cannot intervene directly to do anything about it.

In terms of existing water legislation, the department’s only recourse is for the minister to “in consultation with the minister of cooperative government and traditional affairs” make a “request” to the relevant province to, in terms of art. 139 of the Constitution to intervene.

An Art. 139 process allows the provincial government to place a municipality under administration if it fails to fulfill its constitutional duties. However, the process is time-consuming and requires tremendous political will.

Prof. Germarié Viljoen, a senior law lecturer at the North-West University who specializes in water legislation, says she is “quite skeptical” about the effectiveness of an art. 139 process, “given the urgency that often accompanies water services”.

“The reliance on time-sensitive decisions and political motivation makes this an uncertain solution in many cases,” says Viljoen.

It involves one level of government holding another – which is not always accommodating – accountable. A provincial member of the executive council of local government must obtain information from an erring municipality, conduct investigations and accept responsibility for enforcing minimum norms and standards.

New bill

The Water Services Amendment Bill, tabled in parliament in November, seeks to strengthen enforcement by allowing the department to impose directives on municipalities that fail to deliver clean water.

Should a municipality fail to comply with a directive to meet the minimum standard within the required time frame, the bill would allow the minister to appoint “any water service institution” to take over “all the duties” related to water delivery .

This includes operation, maintenance, renovation and expansion, as well as accounts and revenue, tendering, procurement management and human resources.

Any expenses incurred can be recovered from the municipality.

Similar directives issued under the National Environmental Management Act (Nema) – for failure to meet wastewater treatment standards – have in the past often been ignored or taken years to be implemented. Many municipalities do not even respond to the instructions.

Mavasa Wisane, spokesperson for the Department of Water, says that out of 88 notices and directives issued to municipalities for environmental pollution in 2022, 71 “are still not dealt with”. Out of the 17 municipalities that did respond, only eight made submissions that properly addressed the “concern raised”.

She says the department is doing follow-up work on the notices and directives to ensure compliance, and will “take further enforcement steps” if necessary.

The department also filed nine criminal charges against municipalities in the 2022 financial year for the pollution of water sources and ten more in the 2023 financial year. None of these cases have been settled yet.

Regarding directives that will result from the amendment bill, Adelaide Chagopa, associated with the Center for Environmental Rights, says that should the bill pass in its current form, she “doesn’t think that the clause on directives will immediately make any difference”.

Chagopa says the department’s ability to hold dozens of municipalities to account is questionable. This issue may be rectified when the bill is made available for comment.

She believes the punitive measures are necessary to hold municipalities responsible for providing clean drinking water.

“I don’t know what punitive measures can or should look like in legislation, but I believe there is a need for greater consequences for failure to fulfill a function.”

Wisane says most of the public consultations on the Water Services Amendment Bill and the National Water Amendment Bill currently before parliament will take place in February.

Once the necessary updating has been done, it will be submitted again to the cabinet for approval to present it to the parliament and the parliamentary processes will continue.

However, due to the election year at hand, this process can proceed at a snail’s pace.

  • This report was originally posted on GroundUp and is used with permission.