Government slams HRC water report - and lawyer slams government

The SAHRC has investigated the status of water and sanitation services nationwide. The report reflects the data it has collected since 2009, including results of investigations by the Department of Monitoring and Evaluation, findings from nine provincial hearings between August 2012 and December 2012, and a National Conference held in March 2013.

The report “highlights systemic failures in governance and budgeting, particularly in the implementation of and spending on projects”. It was dedicated to Michael Komape, the 6-year-old who died in a pit toilet at school, as well as other people affected by the lack of services and those injured during service delivery protests. The Komape family attended the launch of the report and shared the story of their son’s death.

The SAHRC found that 1.4 million (11%) households have no sanitation services — most of these in the former homelands. 3.8 million (26%) households lack adequate sanitation because existing toilet infrastructure has deteriorated. Municipalities do not have enough staff members to service their communities; 28% of municipal jobs are vacant. For example, 42% of municipalities do not have a registered engineer. 9% of municipalities are “in a state of crisis,” and 38% are on the verge of deteriorating to such a state.

Municipalities do not receive a budget dedicated to sanitation; instead they receive a lump sum for municipal infrastructure which also includes roads, water, and energy. So municipalities spent most of their money on water and the rest on sanitation. Priority in water supply is given to industries, mines, and agribusiness, while farm workers and poorer farmers often lack access to water. See South Africa’s water wars.

A total of R44.75 billion is required to provide water and sanitation to the unserved and for refurbishment of existing structures (according to 2011 prices). However, the 2014/2015 municipal infrastructure grant only allocates R14.68 billion, and the current budget only allocates R7.26 billion to water and sanitation.

The SAHRC stressed the urgent need to address existing backlogs. Pregs Govender, the lead commissioner on water and sanitation, officially presented the report to the Minister of Human Settlements, the Deputy Minister of Water Affairs, and the Chairperson of the Portfolio Committee of Human Settlements. Govender called on Parliament and civil society to realise these rights.

The key recommendations of the report are to:

• Develop a minimum standard for water and sanitation;
• Return responsibility for providing sanitation to the Department of Water Affairs instead of the Department of Human Settlements;
• Cross-subsidise poorer districts by well-resourced municipalities;
• Monitor contractors used for water and sanitation delivery more closely;
• Ensure that water and sanitation are treated as rights rather than commodities;
• Ensure that communities have greater access to service delivery data; and
• Improve cooperation between government departments and have more consultation with communities.

However, on Wednesday 12 March, the Department of Water Affairs rejected the report, labelling it “outdated, baseless and misleading”. The media liaison officer for the Department, Themba Khumalo, said that the Department objected to the report firstly because “the hearings mentioned in the report were held in 2012, but we are in 2014 now.”

The Department also criticised the report because it focused on areas with poor access to services. “The SAHRC held public hearings only in areas that experienced water challenges, but never bothered to consult with people who had benefited. The report says there are challenges in all nine provinces, but there are successes as well.”

Khumalo said that the report did not reflect presentations the Acting Director-General for Water Affairs, Trevor Balzer, made to the SAHRC in 2013. He said that most of the challenges regarding sanitation should be directed towards the Department of Human Settlements, as the provision of sanitation had been part of their portfolio since 2009.

Pierre de Vos, an expert in constitutional law, said that although it is a grey area, the Department’s response raises difficult questions. Like the office of the Public Protector, the SAHRC was established in terms of chapter 9 of the South African Constitution and is therefore called a chapter 9 institution.

De Vos says, “Where a government Department acts in a manner that attacks the credibility of such institutions or fails to take their advice seriously for no good reason, the department may be in breach of the Constitution. The Department is not legally obliged to implement all recommendations of the HRC and it is not prohibited from criticising a specific finding or recommendation, but the scurrilous attack comes close to undermining the HRC, which would be problematic. If a report of HRC is far-fetched or wrong a Department could approach a court to have it reviewed and set aside. But the HRC and Departments are supposed to work hand in hand to address problems.”

“At best the Department’s response illustrates a complete unwillingness to confront any problems demonstrated by the report,” said De Vos.

The authors are with Ndifuna Ukwazi.