You and Your Rights: Water
- The Constitution of South Africa and the United Nations Human Rights Council both designate access to drinking water a fundamental human right
- Basic water supply services must also provide education on effective water use
- No municipality may cut off a household’s water supply without first providing a written notice of intention that includes an explanation
- A municipal invoice must be issued to each household, free of charge, on a monthly basis, including opening and current balance, as well as any overdue payments
- The South African courts have ruled that no household is to be denied the basic necessity of 6 kL of water per month
What laws and regulations protect your right to water?
The United Nations Human Rights Council adopted a resolution on 30th September 2010 affirming that water and sanitation are human rights. The statement affirmed “that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity.”
Constitution of South Africa
South Africa enshrines the basic right to sufficient water in its Constitution, stating that "Everyone has the right to have access to (...) sufficient food and water ..” - Section 27(1) (b).
South Africa’s Water Services Act, Act 108 (1997)
This Act contains a section on the right of access to basic water and sanitation. It states that:
- Everyone has a right of access to basic water supply and basic sanitation.
- Every water services institution must take reasonable measures to realise these rights.
- Every water services authority must, in its water services development plan, provide for measures to realise these rights…
The National Water Act, Act 36 (1998)
The National Water Act is important because it provides a framework to protect water resources against over-exploitation and to ensure that there is water for social and economic development and water for the future. It is also important because it recognizes that water belongs to the whole nation for the benefit of all people.
This Act outlines the permissible use of water. It says a person can:
- Take water for reasonable domestic use in their household, directly from any water resource to which that person has lawful access;
- Take water for use on land owned or occupied by that person, for reasonable domestic use; small gardening (not for commercial purposes); and the watering of animals (excluding feedlots) which graze on that land (within the grazing capacity of that land) from any water resource which is situated on or forms a boundary of that land, if the use is not excessive in relation to the capacity of the water resource and the needs of other users;
- Store and use run‑off water from a roof;
- In emergency situations, take water from any water resource for human consumption or firefighting.
“Compulsory National Standards and Measures to Conserve Water” (June 2001)
Regulation 2 states that the minimum standard for basic sanitation services is:
- The provision of appropriate health and hygiene education;
- A toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry of flies and other disease-carrying pests.
Regulation 3 states that the minimum standard for basic water supply services is
- The provision of appropriate education in respect of effective water use;
- A minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household per month
- At a minimum flow rate of not less than 10 litres per minutes
- Within 200 metres of a household; and
- With an effectiveness such that no consumer is without a supply for more than seven full days in any year.
Who manages our water sources and services?
The Constitution allocates the management of water resources to National Government and the management of water and sanitation services for all citizens to municipalities (local government). This is why there is an Act that deals with the sources of water (national responsibility) and an Act that deals with water services (local responsibility).
The public water and sanitation sector in South Africa is organized in three different tiers:
- The national government, represented by the Department of Water Affairs (DWA), establishes policy.
- Water Boards, which primarily provide bulk water, in addition to playing a role in water resources management. They also provide some retail services and operate some wastewater treatment plants.
- Municipalities, which provide most retail services and also own some of the bulk water.
National government policy around sanitation has taken a long time to be formulated, let alone implemented. The responsibility for sanitation services has very recently been transferred from the Department of Water Affairs in 2010/11 to the Department of Human Settlements – which is tasked with implementing the rural household sanitation programme.
According to government, “over the medium term and beyond, the focus will be on revising the 2001 White Paper on Basic Household Sanitation, determining sanitation norms and standards, and implementing the free basic sanitation strategy.” (p.48, Vote 31 Human Settlements, ENE National Treasury February 2011)
How is this system working?
According to the 2008 CALS Water Fault Lines Report: “… government devolved the responsibility for water services delivery to local government in 2000, and national government has steadily decreased financial and technical support. All the while, municipalities are under considerable pressure, in terms both of internal accounting mechanisms and national government fiscal oversight, to become financially self-sufficient and to recover service-related costs from all areas, including poor communities. This means that at the municipal level it is cost-recovery, rather than social or developmental benefit, that largely determines water services delivery. As a consequence of this decentralised and largely unregulated model, water services delivery is very uneven. While progress has been made in some areas, for many South Africans access to sufficient water and sanitation remains a pipedream.”
How are we charged for water?
In 2001, South Africa introduced a policy of free basic services, including water, electricity and solid waste collection. As part of that policy, every household should receive the first 6000 litres of water per month for free, based on a calculation of a minimum of 25 litres per person per day for a household of eight.
However, municipalities decide if free basic water is made available only to the poor, and how the poor will be defined and identified. Out of 169 water service providers (municipalities), 29 provide free basic water to all their residents, 136 to some and 4 very small municipalities to none. See www.dwaf.gov.za/dir_ws/fbw/ - for a useful table that demonstrate access of poor households to water services.
You are required to pay for water that is used over and above the free supply, with consumption after 6000l (6kl) per month being charged on a rising block tariff basis.
In theory, therefore, all households receive a free lifeline supply of water, subsidized by rising tariff blocks that penalize wealthier households and act as a disincentive to over-consumption.
But in practice, the volume of free water has often proved inadequate for low-income households, forcing them into the second or third block of consumption, often creating higher water bills than these households were charged prior to the introduction of “free” water. This is due in part to the steep rise in tariffs in the second and third block. In some cases, households that consume one drop more than 6kl are also charged for the free block. Households that are unable to afford these payments are effectively forced to cap their consumption at 6kl.
Can your water be cut off?
YES! The Water Services Act (1997) states that a water service provider may “provide for the limitation or discontinuation of water services where a consumer fails to meet his or her obligations to the water services provider, including:
(i) a failure to pay for services; or
(ii) a failure to meet other conditions for the provision of services;
And may place an obligation on a payment defaulter:
(i) to pay a higher deposit;
(ii) to pay a reconnection fee after disconnection of water services;
(iii) may require a payment defaulter to pay a “higher tariff for water services, where that defaulter gains access to water services through a communal water services work and the provision thereof cannot be disconnected or limited without other consumers being prejudiced” – Section 21 (2) (d) – Water Services Act 1997
In cases where households consume more than the free allocation of water, but have not paid for the amounts used above that threshold, some municipalities have introduced devices that stop the flow of water at 6kl, limit the water flow rate to make it impossible to use more than 6kl per month, or simply cut off the water supply altogether.
Because of the political fallout associated with cut-offs and limitation devices, many municipalities have introduced prepaid water meters that provide the free allocation of water but stop at this amount if water has not been pre-purchased.
There have been a number of Constitutional Court decisions about the right of access to water and the controversial use of flow-restrictors, especially as these can appear to be applied in a biased manner. For example, in the City of Cape Town, 70% of flow restrictors were installed in low income areas, whilst only 30% in wealthier suburbs.
Remember, a municipality cannot just cut you off without following due process. You must first be informed in writing about their intention to disconnect your service due to non payment and payment details must be shown on your municipal invoice.
According to the National Credit Act 34 of 2005 (NCA), all municipalities are required to have credit and debt control policies, as well as billing information which complies with the NCA:
What should appear on your municipal invoice?
In brief, the minimum key standards that a South African municipal invoice should meet are:
- All readings and charges must be correct, accurate and transparent; and include information that helps consumers to manage their water and energy use effectively.
- An invoice must be issued monthly
- The opening and current balance must be shown in each successive invoice
- No charge can be levied for issuing the invoice
- Any amounts credited or debited during a period must be specified on the invoice
- Any amounts currently overdue, and the date on which each amount became due, must be shown on the invoice
- Interest on arrear debt shall be calculated for each month for which such payment remains unpaid shall be charged after thirty (30) days after the statement was delivered to the consumer.
What can you do if you are facing water cut-offs or have been cut off?
Poor people in SA have found it very difficult to reconnect their water services once they have been cut off. This has been a very controversial and emotive issue.
Each municipality deals with cut-offs differently - so it is imperative for you to contact your municipality if you are struggling to pay your water and services bills. If possible, you should visit the municipal credit control officer or Municipal Manager to query the disconnection. If the municipality is not easily accessible, you may approach your Ward Councillor or Community Development Worker to seek assistance.
In the event of non-cooperation by officials, you may also lodge a complaint with the National Credit Regulator or report the municipality to the South African Human Rights Commission or Public Protector.
If facing a water cut-off:
- You may consider negotiating with the municipality to pay off your account over time;
- You may have to agree to be assessed for “indigency” (a municipality must have a policy to assist the poor – which many call an “indigency policy”)
- You may consider having a pre-paid system installed in your house. Be aware, however, that if this option comes with a water restrictor device this is considered unconstitutional and a very controversial initiative by the municipality
If you have been disconnected:
South African courts have ruled that no person can be denied the basic 6000 litres of water per month– irrespective of the state of their account. So, a municipality cannot cut off your water supply completely.
The City of Cape Town, for examples claims that it “merely restricts water to a trickle for ratepayers who are in arrears with their municipal accounts”…..and that their “water meters are designed to flow continuously even though it might be reduced to a trickle system until outstanding accounts are paid…. it does allow one access to cold water at a rate of 20 litres per hour.” (City of Cape Town confirms that it does not cut off water completely – Media Release 88/2007 2 April 2007)
What can you do if you don’t have access to clean water?
First, you have a right to know why you are not receiving services. This right to know is protected by the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
The law requires that your municipality, district or rural council must address water and sanitation needs in its Integrated Development Plan (IDP) and Water Services Development Plan (WSDP). You have the right to read these plans which should provide the following information:
- What water and sanitation services exist in your municipal area;
- Areas where residents do not have basic services;
- The number and location of people not provided with basic water and sanitation services;
- Any negative health and environmental impacts of this lack of service;
- A clear phased strategy to ensure access to at least a basic level of services for all within 5 years;
- And, a financial management strategy (plan), including funding sources, to ensure that proposed programs are feasible and affordable.
In the period 2005-2011, many people have had their water services disconnected because they cannot afford to pay their water bills. A major and controversial reason for this is that there has been increasing pressure on municipalities to recover costs from rendering water services.
The Duty to Protect
“The duty to protect requires that the government adopt legislative and other measures to protect the poor and other vulnerable groups against private and public entities that violate their rights. Because private and public water companies tend to overcharge consumers and cut off water to those who cannot afford to pay the increased prices, the government must provide the necessary oversight to ensure compliance with its constitutional obligations.” - Welch A.R. (2005)
In considering these constitutional obligations, we must all grapple with how our right to water is currently protected.
- Is it is acceptable for a household to live without water for the remainder of the month if they have used their monthly allocation of free water and can’t afford to buy more?
- If we accept that water is precious and limited, it can be argued that the state is justified in “rationing” its use. The question then is whether market instruments (charging for water) should be used to ration, or whether another method, such as universal water restrictions should be applied.
- Further, it is important for us to consider whether it is appropriate to target poor households for restrictions. Considering that domestic water use accounts for around 12% of the total water use of the country, and that only a tenth of that is used by the poorer sectors of the population (i.e. 1.2% of total national water use) it should be possible to arrive at a method to ration water that does not disadvantage poor households.
We must debate how much water can be considered sufficient for a household?
For example, in a study on pre-paid water meters in Orange Farm and Phiri, in the City of Johannesburg, Gauteng, “many of the respondents in the case study proposed that an amount of 10,000 litres per household per month would be more acceptable than the current amount of 5,000 litres. At just over 40 litres per person a day in a household of 8 this comes much closer to the World Health Organisation’s recommended standard of 50 litres.”– See ‘Civic Action and Legal mobilisation: The Phiri water meters case’ – Jackie Dugard 2010, and “Domestic Water Provision in the Democratic South Africa – changes and challenges” - Anton Earle et al (2005).