COHRE Water Services Fault Lines 2008 by The Centre on Housing Rights and Evictions (COHRE)

Water Services Fault Lines An Assessment of South Africaâ&#x20AC;&#x2122;s Water and Sanitation Provision across 15 Municipalities

Kate Tissington Marc Dettmann Malcolm Langford Jackie Dugard Sonkita Conteh

Centre on Housing Rights and Evictions (COHRE), Geneva

Norwegian Centre for Human Rights (NCHR), Oslo*

Introduction

Centre for Applied Legal Studies (CALS), Johannesburg

October 2008

Water Services Fault Lines An Assessment of South Africaâ&#x20AC;&#x2122;s Water and Sanitation Provision across 15 Municipalities

* The views expressed in this publication are those of Malcolm Langford of the South Africa Programme and not necessarily of the NCHR

Water Services Fault Lines

About the Contributors

Sonkita Conteh is a legal officer for the Right to Water Programme at the Centre on Housing Rights and Evictions (COHRE), based in the Accra office. Marc Dettmann is a Marquette University graduate from the United States, who volunteered at the Centre for Applied Legal Studies (CALS) between August 2007 and August 2008. Jackie Dugard is a human rights activist and senior researcher at CALS, working on access to basic services and courts. Malcolm Langford is a Research Fellow in the South Africa Programme at the Norwegian Centre for Human Rights (NCHR) in Oslo. Kate Tissington is a researcher at CALS and COHRE, focussing on housing rights and evictions, as well as water and sanitation services.

Acronyms & ANC CDW CSIR DLA DoH DPLG DPW DWAF ES FBSan FBS FBW FBWSTT ID IDP kl lcd PAJA MIG NJRT OECD O/M PPM RDP REDs SALGA SANS 241 SMIF Stats SA VIP WDM WQMS WSA WSDP WS NIS WSP

African National Congress Community Development Worker Council for Scientific and Industrial Research Department of Land Affairs Department of Health Department of Provincial and Local Government Department of Public Works Department of Water Affairs and Forestry Equitable Share Free Basic Sanitation Free Basic Services Free Basic Water Free Basic Water and Sanitation Task Team Identity Document Integrated Development Plan kilolitre (a thousand litres) litres per capita (person) per day Promotion of Administrative Justice Act Municipal Infrastructure Grant National Joint Response Team Organisation for Economic Cooperation and Development Operations and Maintenance Prepayment or Prepaid Meter Reconstruction and Development Programme Regional Electricity Distributors South African Local Government Association South African National Standard 241 Drinking Water Specification Special Municipal Infrastructure Fund Statistics South Africa Ventilated Improved Pit Latrine Water Demand Management Water Quality Management System Water Services Authority Water Services Development Plan Water Services National Information System Water Services Provider

Acronyms & Abbreviations

Abbreviations

iii

Water Services Fault Lines

List of Key

Legislation, Regulations & Policy Documents List of Key Legislation and Regulations Constitution of the Republic of South Africa Act

108 of 1996 (Constitution) Local Government: Municipal Structures Act

117 of 1998 (Municipal Structures Act) Local Government: Municipal Systems Act 32 of

2000 (Municipal Systems Act) National Water Act 36 of 1998 Norms and Standards in Respect of Tariffs

for Water Services (20 July 2001) (Norms and Standards) Promotion of Administrative Justice Act 3 of

2000 (PAJA) Regulations relating to Compulsory National

Standards and Measures to Conserve Water (8 June 2001) (Compulsory National Standards) Water Services Act 108 of 1997 (Water Services

Act)

List of Key Policy Documents DPLG, “Framework for a Municipal Indigent

Policy” Draft (September 2005) DPLG, “Guidelines for the Implementation of

the National Indigent Policy by Municipalities” Draft Document 1 (November 2005) (Guidelines) DPLG, “Policy Framework for the

Implementation of the Municipal Infrastructure Grant (MIG)” (5 February 2004) (Policy Framework) DWAF, “Draft White Paper on Water Services”

(October 2002) DWAF, “Free Basic Water Implementation

Strategy” (August 2002) (FBW Implementation Strategy) DWAF, “National Water Services Regulation

Strategy” Penultimate Draft (April 2008) (National Water Services Regulation Strategy) DWAF, “Strategic Framework for Water

Services: Water is life, sanitation is dignity” (September 2003) (Strategic Framework) DWAF, “Water Supply and Sanitation Policy

White Paper” (November 1994) DWAF, “White Paper on a National Water

Policy for South Africa” (April 1997) DWAF, “White Paper on Basic Household

Sanitation” (September 2001)

table

of contents

About the Contributors

Acronyms and Abbreviations

iii

List of Key Legislation and Regulations

List of Key Policy Documents

Executive Summary

One Introduction

Two Methodology

three Legal and Policy Framework for Water Services in South Africa

Four Key Concepts in Water Services Provision

4.1. Water Services Authorities (WSAs) and Water Services Providers (WSPs)

4.2. DWAF as the Water Services National Regulator

4.3. The Section 78 Assessment Process

4.4. Municipal Infrastructure Grant (MIG)

4.5. Local Government Equitable Share (ES)

4.6. Free Basic Water (FBW) and Free Basic Sanitation (FBSan)

4.7. Tariff Policy

4.8. Indigent Policy

Five Fault Lines

5.1. Eliminating Backlogs and Improving Levels of Service

5.2. Free Basic Services (FBS)

5.3. Indigent Policy as the FBS Targeting Mechanism

5.4. Tariffs

5.5. Credit Control Enforcement - Water Disconnections and Restriction Devices

5.6. Financial and Technical Assistance

5.7. Water Quality

5.8. Water Demand Management (WDM)

5.9. Public Participation

SIx Conclusion and Recommendations

Seven Appendices

Water Services Fault Lines

Executive Summary

South Africa has one of the most progressive legislative and policy frameworks for water services in the world, which includes a constitutional right to water and a national Free Basic Water policy. Within this framework, water is conceived of as a social good and a vital part of the broader developmental project. However, as highlighted in this report, when it comes to implementation at the local government level, where water services are located, the reality is quite different. The reasons are diverse but key among them is that, having devolved the responsibility for water services delivery to local government in 2000, 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. At the same time, this report demonstrates that political will at the local level is important, manifesting in variances between municipalities with similar levels of resources. 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. This report presents the findings of a survey of water services across 15 municipalities conducted by the Centre for Applied Legal Studies (CALS), the Centre on Housing Rights and Evictions (COHRE) and the Norwegian Centre for Human Rights (NCHR), between November 2007 and July 2008. The research findings are presented as a set of nine cross-cutting ‘fault lines’, which reflect systemic obstacles to the provision of universal access to water services across

South Africa. The nine fault lines identified and elaborated on in this report are: Eliminating Backlogs and Improving Levels of

Service Free Basic Services (FBS) Indigent Policy as the FBS Targeting Mechanism Tariffs Credit Control Enforcement – Water

Disconnections and Restriction Devices Financial and Technical Assistance Water Quality Water Demand Management (WDM) Public Participation

Eliminating Backlogs and Improving Levels of Service Eliminating backlogs, meaning extending water services to those with none, and improving levels of service, meaning providing increasingly better levels of service to those with rudimentary access, are vital aspects of water services provision across South Africa. The latter objective is required by the Constitution which requires the progressive realisation of the right of access to sufficient water within available resources. Notwithstanding an obvious problem with the accuracy of data, it is evident that, fourteen years after the advent of democracy, there are still many people – mostly in rural areas – who still have to rely on rivers for their water supply and buckets as a form of sanitation. At current rates, the Department of Water Affairs and Forestry (DWAF) estimates that backlogs in water will only be eliminated in 2011 and backlogs in sanitation will only be eliminated in 2031. Even these figures appear optimistic for a number of municipalities in this survey, and many discrepancies in backlog figures were revealed in our investigation.

This fault line is both the most challenging and the easiest to conclude: There is a clear and urgent need to provide everyone with access to sufficient and appropriate water and sanitation provision. Ensuring adequate access to water services promotes human development and health and contributes to freeing the social and economic potential of every person. It also advances gender equality because, in the absence of adequate water services, women bear the burden of fetching and carrying water from rivers. There can be no more pressing priority for South Africa, suggesting that all resources, financial and technical, should be focused on eradicating water services backlogs and improving levels of service.

Free Basic Services (FBS) At present FBS – Free Basic Water (FBW) and Free Basic Sanitation (FBSan) - are provided in an ad hoc manner by municipalities, with widely varying compliance with national standards. Some

municipalities do not supply FBS at all and some supply only the minimum FBW amount without any FBSan. The lack of any real national monitoring or enforcement of the implementation of DWAF’s FBW policy at the local level, as well as the absence of a FBSan policy, is highly problematic. There is clearly an urgent need for DWAF to formulate a FBSan policy and to monitor and enforce it. Linked to the goals of eradicating backlogs and improving levels of service, such a policy should determine what kinds of sanitation services are deemed appropriate for particular environments and municipalities should be encouraged to provide the best possible sanitation services with the best possible FBSan. In relation to FBW, DWAF needs to follow up on claims made in its 2002 FBW Implementation Strategy to identify and provide the highest level of support to those municipalities that could not implement the national FBW policy by July 2003. This was over five years ago and yet in some municipalities poor people still cannot access even the minimal FBW amount. While national policy is in place, there is as yet no clear enforcement of the policy or national assistance to implement at the local level.

Executive Summary

Moreover, there is a large group of people, such as those living in informal settlements, who are stuck at the bottom of the ‘water ladder’ with only rudimentary water services and no progressive realisation of waterrelated rights. Numerous informal settlements have been connected with a basic water supply and sanitation facility within 200 metres, but they must wait for slum upgrading and housing programmes to materialise before they can have water in the yard or home. Yet many housing and upgrading programmes are stalled or have not yet commenced. In the case of sanitation, it is arguable that the ‘ladder’ has been shortened. There is a strong emphasis on providing Ventilated Improved Pit (VIP) and dry toilets instead of water-borne sanitation, even though these options have not turned out to be necessarily more affordable in practice.

There is also a need for DWAF to oversee and, if necessary, assist municipalities to move away from the very minimal amounts of FBW, towards a more internationally recognised standard. International experts, as well as DWAF itself, have all confirmed that 50 litres per person per day is the minimum amount of water needed to sustain a healthy and dignified life. In order to ensure that household allocation of water corresponds with household size, a housing size census should be undertaken every couple of years. Furthermore, there should be non-burdensome special representation mechanisms in place, advertised widely, for input in the interim period as well as for

Water Services Fault Lines

vulnerable groups like people living with HIV/AIDS. Finally, access to FBS should not be linked to the compulsory installation of water restriction devices that limit access to water to unacceptable amounts or in unacceptable ways.

Indigent Policy as the FBS Targeting Mechanism The majority of municipalities in our survey provide FBS only to those households that are registered for their indigent policy. Using the indigent policy as a means of allocating FBS to poor households is deeply flawed and generally fails to achieve the desired poverty-alleviation ends since the poor are underrepresented on the register. The most vulnerable societal groupings (women, child-headed households, and the unemployed), are frequently not aware of the indigent policy or register and/or do not register for fear of attracting adverse official attention. The process for qualifying also differs vastly across municipalities, suggesting incoherent objectives and methodologies, and is typically quite onerous and exclusionary. An alternative method of providing FBS to those in need is that of geographic targeting. Geographic targeting entails identifying poor areas for the allocation of FBS. It requires municipalities to seek out those who do not qualify, as opposed to placing the onus and burden on those who do qualify to register with the municipality. In South Africa, this method is quite attractive as apartheid geography segregating racial groups is still largely present. A greater allocation of FBW could thus be automatically allocated to known areas of poverty, including certain buildings in the inner city. In order to avoid rich people in these areas benefitting unfairly, efforts could be focused at weeding out undeserving recipients. However, geographic targeting is less workable though in municipalities with overwhelmingly poor populations. The most ideal method of allocating FBS, and one that makes more sense in overwhelmingly poor municipalities, as well as generally, is that of universal allocation. Regardless of type of municipality, universal allocation is not only the most effective way

of ensuring that all deserving people receive the critical benefit of FBS, but it has the additional benefit of not requiring complicated processes and administration to identify qualifying households from non-qualifying households. Universal allocation has a further benefit of countermanding the otherwise negative segmentation of water services (whereby water services become stratified, with rich and poor households receiving fundamentally different services). In South African municipalities, universal allocation could be effected through an appropriate amount of water calculated per person per day (starting at 50 litres per person per day but incorporating an additional amount for sanitation where there is water-borne sanitation) worked out across a suburbâ&#x20AC;&#x2122;s average number of persons per household. In municipalities with richer water users, universal targeting could be afforded through steep tariffs at the luxury end of the water services spectrum, ensuring that those who use excessive amounts of water and can afford to pay, cross-subsidise the poor. In uniformly poor municipalities cross-subsidies would have to come from national government.

Tariffs The setting of tariffs should be an exercise in striking an appropriate balance between providing affordable water and sanitation services, and ensuring the sustainability (in economic and environmental terms) of rendering such services. Every municipalityâ&#x20AC;&#x2122;s tariff structures should be based on and reflect this logic. However, such logic was not evident across the municipalities in our survey, which reflected widely varying tariff rates for similarsituated resource bases and population profiles. The glaring disparity across the current tariff landscape is cause for concern, suggesting a role for greater national standardisation, albeit ensuring local appropriateness. The first step would be for DWAF to assist municipalities to determine (a) the actual costs of providing water and sanitation services, (b) how much revenue they are receiving from these services, (c) how much poor households can afford to

Credit Control Enforcement â&#x20AC;&#x201C; Water Disconnections and Restriction Devices Excessive emphasis on cost-recovery encourages strict credit control enforcement for non-payment by the poor. Although more research is needed to confirm this, there appears to be a worrying trend to impose harsh credit control measures on low-income residents, while higher-income residents, businesses and government departments are afforded far more leniency in terms of non-payment of accounts. One municipality bucked the trend and only threatened large users with disconnection. But the more general practice is that, while government institutions (and high-end domestic users not canvassed in this research) get away with using water on credit and not paying bills, poor water users are frequently disconnected or restricted to the free basic amount through flowrestrictors or prepayment water meters. From a developmental, as well as a legal, perspective, total water disconnections are wholly unacceptable. Likewise, the imposition of prepayment water meters, which disconnect water automatically, and flowrestrictors, which drastically reduce flow rates, are not acceptable. Rather, water disconnection to poor households should be governed by considerations of equity, to ensure that people who are unable to pay for

water do not have their health and dignity compromised by a municipality disconnecting their water supply. In a number of countries, including Spain and Germany, water disconnection is not permitted unless the water company can prove that it has no other means to obtain payment of its bill. In England and Wales, water disconnection was prohibited by law in 1999 while in France families with children and disabled persons may not be disconnected and poor people can make use of temporary moratoriums for payment and seek financial assistance from local social services. In many municipalities, French mayors have decided neither to disconnect poor people, nor to allow water utilities to do it. South African municipalities need to develop a principled approach to water disconnection and restriction, emphasising equity and human rights considerations. Within such an approach, poor and vulnerable people should not be left without water and credit control enforcement should be focused on the rich, rather than on the poor. This suggests a role for DWAF in regulating, monitoring and enforcing guidelines and safeguards across municipalities. In addition, ways must be found to prevent water debt in the first place. This includes subsidising water services, including operations and maintenance costs, to poor households and communities, whether through steeper tariffs for luxury consumption within a municipality and/or greater transfers from national government.

Executive Summary

spend on water and sanitation services and (d) how many richer users exist and how much they can afford to pay to cross-subsidise poorer users (this involves studies of elasticity of demand of rich water users i.e. at what charge will high-end users start to decrease their water consumption). Another recommendation is for DWAF to monitor water and sanitation tariffs in a similar manner to which it monitors water quality, with an obvious emphasis on accuracy, efficiency, enforcement and equity. Accurate data on tariffs is vital to assist with studies into implementing progressive and affordable tariff structures.

Financial and Technical Assistance From our research it is apparent that current Municipal Infrastructure Grant (MIG) and Equitable Share (ES) funding allocations are insufficient to ensure universal access to adequate water and sanitation, particularly in uniformly poor municipalities with limited potential to secure revenue from internal tariff cross-subsidies. A frequent casualty of this reality is proper attention to the maintenance of infrastructure, meaning that municipalities face chronic problems of faulty piping etc., which adversely affects their quality of service as

Water Services Fault Lines

well as their long-term finances (while savings can be made in the short-term by neglecting maintenance, in the medium- and long-term such neglect leads to higher costs). A further exacerbating factor is municipalities’ inability to attract the requisite skilled personnel to carry out key functions. It is clear that if water services are to be prioritised as they should be, additional funding from national government must be made available to ensure the necessary financial, technical and human resources reach the municipal level, where water services delivery occurs.

Water Quality In many countries, water quality is managed by the health, rather than the water, department. In South Africa there has been a somewhat unsatisfactory division of responsibility between health and water departments but, until recently, DWAF has been relatively successful at ensuring high water quality standards across the country. However, there is evidence that DWAF’s system of water quality management is under strain and requires urgent attention to avert further water contamination and related deaths. DWAF needs to address the deteriorating water quality in dams and to ensure uniform compliance with water quality standards across municipalities. We fear that the new certification scheme, especially if focused merely at naming and shaming non-complying municipalities, will not address the root causes of the problem, which relate to insufficient financial and technical assistance, as well as human capacity, at the local government level.

Water Demand Management (WDM) It is clear from our research that water leaks and inferior water infrastructure need to be addressed as a matter of priority. Furthermore, water demand audits that provide an analysis of assets and promote engagement with communities need to be undertaken by municipalities in order to understand the complex relationship between long-term supply and demand. 6

Such information needs to form the basis of FBS and tariff structures in a way that satisfies ‘green’ and ‘red’ objectives. DWAF as the national regulator could intervene to assist under-capacitated municipalities to develop appropriate WDM strategies, which ensure that poor households have access to enough water to sustain a healthy and dignified life, and that large consumers like industry, agriculture and hedonistic residential consumers are penalised for their excessive consumption. Water conservation education should be undertaken with the ultimate goal to ensure access to adequate and safe water for all and to curb hedonistic water consumption.

Public Participation Public participation is a key tenet of democratic governance and the legal and policy set up for postapartheid water services. Although we did not focus on public participation from an end-user/community perspective, it is evident from our research that the current forums of public participation – ward councils and Integrated Development Plan (IDP) and Water Service Development Plan (WSDP) processes – are failing to adequately incorporate input from communities, and particularly from marginalised and poor communities. There is a clear need to rethink public participation so as to actively incorporate public input. More progressive methods to facilitate public participation are used in eThekwini and City of Cape Town, where both municipalities have ostensibly recognised the problems associated with ward committees and opted for more inclusive and participative methods such as the Raising the Citizens’ Voice Project. While there are valid criticisms of the actual inclusive participation aspect of these initiatives, they are undoubtedly an improvement.

Recommendations Based on our findings across the nine fault lines, we identify the pressing need for: 1. Greater financial and technical support to municipalities, including funds and deployment of personnel. This is especially for poor municipalities that are under-spending and not reducing their backlogs quickly enough and those which have limited potential to raise internal revenue through cross-subsidisation with rich water users. 2. Prioritisation of efforts to eradicate all backlogs and advance levels of service, including

as well as research into consumption, costs and affordability of water services across lowincome households.

5. National regulation of credit control practices to ensure || fair enforcement between different classes of water users, including the establishment of pro-poor policies on disconnections, and || prohibition of prepayment water meters and other pernicious water restriction devices in poor communities. 6. More effective national regulation of water quality control.

finalising and implementing an appropriate

Free Basic Sanitation (FBSan) policy, and Free Basic Water (FBW) allocation across all municipalities, starting with a national minimum amount of 50 litres per person per day. 3. Abandonment of using the indigent policy and register to allocate FBS and, instead, utilisation of universal allocation of FBS or geographic targeting. This may require research into ways to effectively cross-subsidise across bands of domestic water users, including an investigation of elasticity of demand at the different levels of consumption.

Executive Summary

implementing an adequate per person per day

4. National regulation of all water tariffs to ensure || equitable reflection of social and environmental justice objectives, and || a price cap for the first tariff block/s following the FBW block across all municipalities i.e. to ensure uniformly low tariffs for low consumption and to get away from the situation in which poor people in the poorest municipalities often have to pay higher prices for water than in richer municipalities,

One Water Services Fault Lines

Introduction South Africa has one of the most progressive legislative and policy frameworks for water services1 in the world, which includes a constitutional right to water and a national Free Basic Water (FBW) policy. Within this framework, water is conceived of as a social good and a vital part of the broader developmental project to “improve the quality of life of all citizens and free the potential of each person.”2 However, on the ground in the local government sphere where water services are located, the reality is quite different. As highlighted in this report, at the municipal level it is cost-recovery,3 rather than social or developmental benefit, that largely determines water services delivery. As a consequence, for many South Africans, access to sufficient water and sanitation remains a pipedream. Undoubtedly, many of the impediments to equitable water services are rooted in the apartheid legacy of unequal service

Throughout this report we use the definition of water services utilised in the Department of Water Affairs and Forestry’s (DWAF), “Strategic Framework for Water Services: Water is life, sanitation is dignity” (September, 2003) (Strategic Framework), p. 2: “The term water services means water supply services and/or sanitation services or any part thereof” (this encompasses all forms of sanitation, whether water-borne or not). We acknowledge that we have focused more on water than sanitation provision, which undoubtedly deserves further research and analysis. 2 Preamble of the Constitution of the Republic of South Africa Act 108 of 1996. 3 Cost-recovery refers to the recovery of all, or most, of the cost associated with providing a particular service by a service provider. For publicly-owned service providers this may or may not include a surplus over and above the cost of production, whereas for privately-owned service providers it necessarily includes a surplus or profit. The objective in both cases is however, to recoup the full cost of production. From McDonald, D., “The Theory and Practice of Cost Recovery in South Africa.” In McDonald, D. and Pape, J. (eds.), Cost Recovery and the Crisis of Service Delivery in South Africa (London, 2002), p. 18. 1

delivery.4 But, as we explore in this report, a range of factors continue to frustrate the goal of universal access to water services. Under apartheid, the central state bore the cost of providing water services and, in line with apartheid logic, it heavily subsidised infrastructure and services to wealthy white communities. In these areas (which remain predominantly white in profile), water services infrastructure is usually still of a much higher standard than in poor black communities and requires less maintenance, lowering the cost of service provision.5 Whereas in poor and marginalised communities (located in predominantly black areas), which represent the majority of South Africa’s population and geography, neglected and deteriorating infrastructure requires high maintenance and upgrading costs. Thus, there is a need to provide new infrastructure to eradicate backlogs and extend services to disadvantaged areas that previously had no water services whatsoever. All the while, municipalities are under considerable pressure, in terms both of internal accounting mechanisms and national government oversight, to recover costs from all areas, including poor communities. This is because, in an attempt to promote the National Treasury’s focus on fiscal discipline, as well as to curb corruption and misspending, municipalities are required to balance their budgets. There is consequently a generalised adherence by municipalities to a costrecovery dominated approach – tempered to a greater In 1994, according to the African National Congress (ANC)’s 1994 Reconstruction and Development Programme (RDP), 12 million South Africans did not have access to clean drinking water and 21 million people did not have access to adequate sanitation (para. 2.6.1): http://www.anc.org.za/rdp/rdp2.html#2.6. Accessed 15 October 2008. 5 McDonald, D., “The Theory and Practice of Cost Recovery in South Africa”, at note 3, p. 27. 4

or lesser extent with equity concerns - in which water is viewed primarily as a commercial good and in most instances is actually one of the main sources a revenue for cash-strapped municipalities.6 Yet, in the context of historical disadvantage and structural inequality, attempting to enforce cost-recovery in poor communities is unfair and contradicts broader national developmental goals. It has also impacted negatively on the ability of municipalities to achieve universal access to water services, resulting in significant segments of the population suffering without adequate water supply and sanitation.

Locating our research in fifteen municipalities, we identified several specific water services-related fault lines that act as barriers to accessing water and sanitation at the local level. These fault lines are explored in this report. They include problems around eliminating backlogs and improving levels of service; Free Basic Services (FBS); indigent policy as the FBS targeting mechanism; tariff structures; credit control enforcement; financial and technical assistance; water quality; water demand management (WDM); and public participation.

Makgetla, N., “Local budgets and development.” Unpublished paper (March 2006). 7 “SA’s straining water supply system is putting the health of millions of people at risk, and experts warn that a crisis similar to that in electricity supply will develop if no immediate steps are taken to preserve water quality” – “Developing crisis number two.” The Weekender (17-18 May 2008): http://216.239.59.104/ search?q=cache:MjjO7OWUcjUJ:www. businessday.co.za/weekender/article.aspx%3FID% 3DBD4A768167+Recent+water+incidents+site:.

ONE

Introduction

There can be no doubt about the importance of water services to the wellbeing and socio-economic development of human beings. Yet, to date, the practicalities of water services delivery at the municipal level have been under-researched. As the Department of Water Affairs and Forestry (DWAF) takes on a new role as the national water sector regulator, the need to understand the dynamics of local water and sanitation provision is not only essential, but opportune. This report aims to contribute to such an understanding in the hope that existing problems and inequalities might be tackled so that they do not eventually culminate in a crisis similar to that currently experienced in the energy sector.7

za&hl=en&ct=clnk&cd=3. Accessed 15 October 2008.

Two Water Services Fault Lines

Methodology From November 2007 to February 2008, Marc Dettmann and Kate Tissington from the Centre for Applied Legal Studies (CALS) and Malcolm Langford and Denile Samuels from the Norwegian Centre for Human Rights (NCHR), conducted interviews with local officials from fifteen municipalities on various aspects of water services delivery, focussing on the provision of water and sanitation to residential properties within the municipalities. These municipalities are located in various provinces and include: Western Cape: City of Cape Town Metropolitan

Municipality, Cape Winelands District Municipality, Stellenbosch Municipality and Witzenberg Local Municipality Mpumalanga: Dr J.S. Moroka Municipality and Albert Luthuli Municipality Limpopo: Lepelle-Nkumpi Local Municipality and Blouberg Municipality North West: Moses Kotane Local Municipality and Local Municipality of Madibeng Kwazulu Natal: eThekwini Metropolitan Municipality and Msunduzi Municipality Gauteng: Ekurhuleni Metropolitan Municipality Eastern Cape: Nelson Mandela Metropolitan Municipality and Amathole District Municipality. In addition, a Vhembe District Municipality official (located in Limpopo) was also interviewed and although this authority was not formally included, the interview provides background information for some of the analysis.

We chose to survey a mix of urban and rural municipalities, aiming to provide a snapshot of the different approaches that municipalities take to water and sanitation provision in South Africa. Four of the municipalities in our survey can be classed as urban, two as rural, five as predominantly rural and

four as mixed.8 We acknowledge having focused on account holders over non-account holders and water over sanitation. These shortcomings are discussed in further detail in the fault line on eliminating backlogs and improving levels of service in part 5.1. Our interviews examined a wide range of issues, including budgeting and finance, the relationship of the municipality with DWAF, water quality, indigent policy, FBS, tariff structures, disconnections, public participation and institutional capacity. We spoke to people in various positions within the municipalities, including directors, deputy directors and heads of water and sanitation; planning technicians; Department of Finance, treasury and budget personnel; an Integrated Development Plan (IDP) director, a director of infrastructure development; a manager of technical services; chief water engineers, heads of Water Services Development Plans (WSDPs), a deputy director of engineering services, planning and construction; and a chief accountant for water and sanitation, amongst others.9 Because we wanted to identify cross-cutting, systemic, issues, this report does not delve deeply into the specifics of the institutional and administrative setups for water services across municipalities – however, this is a topic that requires further research, as it would appear that institutional form might affect While we acknowledge that there are differing definitions of rural and urban, we have gathered our demographic information from Statistics South Africa and have used their definitions. 9 We have not included a list of the officials we spoke to – personal anonymity was a condition of the interviews (we did make it clear that we would publish the names of the municipalities, as well as the information pertaining to each municipality). Our aim was neither to shame individual municipalities nor to attribute blame, but rather to highlight systemic, structural, problems with water services provision in South Africa. 8

Once we had verified as many of the data as we could, we used the matrix to identify cross-cutting ‘fault lines’, which formed the basis of this report. The fault lines highlighted in this report do not represent all the apparent problems at municipal level –rather, they reflect what we perceived to be systemic obstacles to the provision of universal access to water services. On 20 May 2008, a national workshop was held at CALS which was attended by interested civil society organisations, academics and activists from around South Africa. The debates and ideas that emerged from lively discussions held in response to the draft of this report were then incorporated into the final report. The report was written and edited by Kate Tissington (CALS), Marc Dettmann (CALS), Malcolm Langford (NCHR), Jackie Dugard (CALS) and Sonkita Conteh (COHRE), between June and October 2008. Anokhi Parikh, a researcher at CALS, kindly did the final proof-reading and assisted with the tariff graphs. Where relevant, we have supplemented information with recent reports and newspaper articles.

Finally, the contributors would like to thank all the officials from municipalities and DWAF that we interviewed, as well as all the academics and NGO, community-based organisation (CBO) and social movement representatives and community members who contributed to this research. We are indebted to Marc Dettmann, who volunteered at CALS for a year and championed this project so generously and wholeheartedly for the duration of his stay. This research and the report were made possible through funding from COHRE and NCHR, which we gratefully acknowledge.

Methodology

The objective of the in-depth interviews with municipal officials (often running to several hours each) was to gauge the attitudes of municipalities and officials, and to elicit factual information about waters services provision within their jurisdiction. After the interview process, this input was cross-checked against and supplemented with additional information (gleaned from IDPs, WSDPs, publicised indigent, tariff and credit control policies) to maximise accuracy. We then tabled the information into a matrix, which plotted information about water services in each municipality across our survey questions.

While we have attempted, through the processes outlined, to ensure accurate data, it should be noted that it is not possible to access 100 percent accurate information from municipalities. Indeed, in many municipalities, officials were unable to answer our questions or provide relevant statistics. Because most of DWAF’s information comes directly from municipalities, this means that DWAF’s data, too, are not necessarily reliable, reflective or up-to-date.

TWO

service delivery, accountability, public participation etc.

Water Services Fault Lines

Three

Legal and Policy Framework for Water Services in South Africa Local government operates in terms of a specific legislative/policy framework, which governs, to an extent, its functioning in regard to water services provision. Notwithstanding our research finding that municipalities function very differently from each other in the way they provide water and sanitation to their constituencies (we detail the various responses across the identified fault lines in part 5 of the report), it is important to outline the frameworks within which water services are located, before turning to the reality on the ground. Part 3 provides an overview of the relevant legislation and policy documents that govern water services provision in South Africa. Section 27(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution) provides everyone with the right of access to “sufficient water”, and section 27(2) obliges the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of everyone’s right of access to sufficient water. It is schedule 4(b) of the Constitution, which determines that water and sanitation services are local government matters. The Constitution also highlights the importance of human dignity, providing in section 10 that “everyone has inherent dignity and the right to have their dignity respected and protected”. It further emphasises the need to promote equality. The equality clauses in section 9 prohibit the state from unfairly discriminating “directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”10 Moreover, section 9(2) explicitly sanctions affirmative action by stating:

Section 9(3) of the Constitution of the Republic of South Africa.

Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken.

In the context of water services, this means not only that no water-related programme or policy may unfairly discriminate against any group of historically disadvantaged people (for example, any water credit control measure must not be imposed only on poor communities), but also that any bias in favour of historically disadvantaged people will not amount to unfair discrimination and is acceptable (meaning, for example, that water tariffs for the same levels of consumption can be lower in poor communities than in richer communities). Protection of the right of access to water is considerably bolstered by section 33(1) of the Constitution, which provides for just administrative action and states that “everyone has the right to just administrative action that is lawful, reasonable and procedurally fair”, and section 33(3) provides that “national legislation must be enacted to give effect to these rights.” The Promotion of Administrative Justice Act 3 of 2000 (PAJA) was enacted to give effect to these rights, which are particularly important in the context of disconnection of water services. In terms of water services, specifically, while the National Water Act 36 of 1998 (National Water Act) creates a comprehensive legal framework for the management of water resources in South Africa, which remains the responsibility of national government, the Water Services Act 108 of 1997 (Water Services Act) is the primary legal instrument relating to the accessibility and provision of water services (which

Section 1(iii) of the Water Services Act. “Water Services Act, 1997 (Act 108 of 1997)” (19 December 1997): http://www.wrc.org.za/downloads/legislature/ WSA108-97.pdf. 12 Section 1(ii) of the Water Services Act. 13 Section 5 of the Water Services Act. 11

The Local Government: Municipal Structures Act 117 of 1998 (Municipal Structures Act) governs the institutional arrangements of local government, including water services provision. The Local Government Municipal Systems Act 32 of 2000 (Municipal Systems Act) provides the machinery and procedures to enable municipalities to uplift their communities socially and economically, and guarantee affordable universal access to basic services. It seeks to empower the poor and ensure that municipalities establish service tariffs and credit control policies that take their needs into account. Other legal and statutory requirements relating to municipal revenue and credit control, which affect water services are found in the following legislation: Division of Revenue Act (promulgated annually)

(DORA) Local Government: Municipal Finance

Legal and Policy Framework for Water Services in South Africa

The Water Services Act acknowledges that, although municipalities have the authority to administer water and sanitation services, all spheres of government have a duty within their physical and financial capabilities, to work towards this goal. The Act defines ‘basic water supply’ as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene.”11 ‘Basic sanitation’ is described as the “prescribed minimum standard of services necessary for the safe, hygienic and adequate collection, removal, disposal or purification of human excreta, domestic waste water and sewage from households, including informal households.”12 Importantly, section 5 of the Water Services Act states that, if water services provided by water services institutions fail to meet the needs of all their customers, they must give preference to the provision of basic water supply and basic sanitation. In cases of emergency, basic water supply and sanitation services must be provided, even at the cost of the water services authority.13 Section 4(3) of the Water Services Act states that procedures for the limitation or discontinuation of water must “be fair and equitable” and “provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations.” This procedural protection against unfair limitation or

disconnection of water supply echoes the procedural protections found in section 3(2)(b) of PAJA.

Management Act 56 of 2003 Local Government: Municipal Property Rates

Act 6 of 2004

THREE

includes drinking water and sanitation services) to households and other municipal water users by local government.

Complementing the legislation are several official documents on water and sanitation. There have been three White Papers on water supply (the 1994 “Water Supply and Sanitation Policy White Paper”, the 1997 “White Paper on a National Water Policy for South Africa”, and the 2002 “Draft White Paper on Water Services”). In 2001, the “White Paper on Basic Household Sanitation” was published, which specifically focused on the provision of a level of basic household sanitation to mainly rural communities and informal settlements, which it identified as the areas with the greatest need.

Water Services Fault Lines

In 2002 the DWAF “Free Basic Water Implementation Strategy” (FBW Implementation Strategy) was launched,14 which ostensibly targets the water needs of the poorest citizens by guaranteeing each household a free minimum quantity of potable water, benchmarked at 6 kilolitres (‘6kl’, which is 6 000 litres) per household per month.15 DWAF’s “Strategic Framework for Water Services” (2003) (Strategic Framework), with its slogan “Water is life, sanitation is dignity,” is a national umbrella framework for the water services sector, that seeks to align policies, legislation and strategies with respect to the provision of water services in South Africa, outlining the changes in approach needed to achieve policy goals.16 The Strategic Framework sets out the future role of DWAF as the national sector regulator and provides background for many of the issues discussed below. Most recently, the DWAF, “National Water Services Regulation Strategy,”17 which is still in draft form, provides the basis for the genesis of DWAF as a national regulator of water services. Together, these legislative and policy imperatives suggest a dignified, equitable and administratively just approach to water services in which everyone has access to adequate, safe and affordable water and sanitation. However, as explored below, the reality on the ground is far more complex and, to varying degrees, problematic. It is evident that water services provision, levels of service and administrative processes vary considerably across and within municipalities. Given the critical nature of water services, as well as the legal imperatives mentioned above, it is clear that some form of uniform regulation and enforcement is required in DWAF, “Free Basic Water Implementation Strategy.” (August 2002) (FBW Implementation Strategy): http://www.dwaf.gov.za/Documents/FBW/ FBWImplementStrategyAug2002.pdf. 15 The national benchmark of 6 kilolitres (kl) or 6000 litres (l) per household per month is equivalent to 25 litres per capita (person) per day (lcd) working on an average of eight persons per household. 16 DWAF, Strategic Framework, p. ii. 17 DWAF, “National Water Services Regulation Strategy: Penultimate Draft” (April 2008): Not yet available electronically. 14

the water services sector to ensure equitable access, particularly regarding the extension of free basic water and sanitation.

Four

Key Concepts in Water Services Provision

A Water Services Authority (WSA) is responsible for ensuring access to water services within its area of jurisdiction. Whether a metropolitan, district or local municipality, or a rural council, a WSA has executive authority to provide water services within its area of jurisdiction. This power is derived from the Municipal Structures Act or the ministerial authorisations made in terms of this Act. According to the Water Services Act, every WSA must draft a WSDP for its area of jurisdiction. A Water Services Provider (WSP) is any entity that has a contract with a WSA to assume operational responsibility for providing water services to one or more consumers (end users) within a specific geographic area. A WSA may perform the functions of a WSP itself, enter into a written contract with a WSP, or form a joint venture with another water services institution to provide water services to end users. However, a WSA may only enter into a contract with a private sector WSP after it has considered all known public sector WSPs which are willing and able to perform the relevant functions. A WSP, if not the same as the WSA, must be approved by the relevant WSA in order to provide water services and may be local or regional, depending on whether it provides water services to more than one WSA. A WSA may act as a WSP outside its area of jurisdiction if contracted to do so by the WSA for the area in question.

Seven municipalities (Moses Kotane, Madibeng,

Dr J.S. Moroka, Nelson Mandela Metro, City of Cape Town, Stellenbosch and Witzenberg) are both the WSA and WSP within their jurisdiction; Albert Luthuli is the WSA and the WSP for two

water schemes while DWAF is the WSP for the other six schemes; In Lepelle-Nkumpi and Blouberg, Capricorn

District Municipality is both the WSA and WSP; Ekurhuleni is the WSA while Rand Water is the

WSP; eThekwini is the WSA while Umgeni Water is the bulk WSP; Amathole District Municipality is the WSA for

the district while the WSPs include itself, local municipalities and Amatola Water; Msunduzi is the WSA and Amatola Water is

the WSP; and

Key Concepts in Water Services Provision

4.1. Water Services Authorities (WSAs) and Water Services Providers (WSPs)

Of the fifteen municipalities reviewed:

Cape Winelands District Municipality is

the WSA but is principally concerned with ensuring farm dwellers access water while local municipalities i.e. Witzenberg, are responsible for piped water.

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This part provides descriptions of some key institutions, funding mechanisms, and processes that are important in the context of water services provision in South Africa.

4.2. DWAF as the Water Services National Regulator Section 155(7) of the Constitution, as well as section 62(1) of the Water Services Act, mandate national government to monitor the performance of the water sector, and specifically grant DWAF the mandate to monitor the performance of all water services institutions. However, until recently, this DWAF mandate did not encompass a role as national water services regulator. The recently published draft

Water Services Fault Lines

National Water Services Regulation Strategy (April 2008) hopes to fill this critical regulatory gap, by establishing DWAF as the national regulator of the water services sector, and it shifts DWAF’s role from water services provider and player to that of regulator or “referee.”18 The National Water Services Regulation Strategy process is a relatively recent endeavour, having started in 2006. The Strategy is still in draft form, and the structures, policies and functions are still under construction. It is not known when the Strategy will be finalised and there are signals that deadlines are being shifted to incorporate a much broader regulatory vision, including Water Demand Management, which will inevitably delay the process. In the meantime, there is still very little national regulation of local water services provision, except for the monitoring of water quality, and the new national regulatory policy and designated unit have only recently been established. This has meant that, until now, water regulation has largely been left to individual municipalities.19 Our research suggests that municipalities have often not regulated in the public interest. In general terms, the absence of national regulation has resulted in vastly differing tariffs, standards and restrictions etc., which have, in many cases, compromised access to water for poor and marginalised communities. According to the draft National Water Services Regulation Strategy, WSAs will have to report across Ibid. In the absence of a national water regulator (such as exists for energy), to the extent that it has occurred at all, regulation has been undertaken by WSAs. This study did not evaluate the extent to which WSA regulation, has been functional/effective. This is because, ascertaining whether WSAs are regulating in the interest of poor communities would have entailed in-depth research in communities, which was not possible in this project. However, a key finding of our research is that much greater national regulation in the public interest is necessary. This conclusion is drawn from the persistence at local government level of the kinds of fault lines that we explore in the report, many of which could be addressed or ameliorated through effective national regulation.

18 19

a number of Key Performance Indicators, which will assist DWAF to make performance assessments. The plan is to introduce incentives to encourage WSAs to report and perform effectively. DWAF will have legal recourse against non-compliance by WSAs, as well as the ability to hand over water services functions to different departments or spheres of government if there is a major problem. DWAF will also be able to intervene in service delivery if there is a gross failure on the part of a WSA and where lives and/or the environment are at risk. According to the new national strategy, “DWAF as the national regulator will be concerned only with high-level performance and with outcomes, not the detailed processes.”20 The key regulatory areas laid out in DWAF’s National Water Services Regulation Strategy and the responsible government agencies are: 1. Social regulation: access to services, affordability of services and pro-poor tariffs (Department of Provincial and Local Government (DPLG) is the lead agency, assisted by DWAF, the National Treasury and the Department of Housing); 2. Drinking water quality: DWAF is the lead agency assisted by the Department of Health (DoH); 3. Environmental health regulation: public health and environmental health (DoH is the lead agency, assisted by DWAF); 4. Water resources regulation: DWAF is the lead agency; 5. Economic regulation: price, performance, value for money and efficiency (National Treasury is the lead agency, assisted by DWAF). Within this regulatory framework it is noticeable that, for many of the key fault lines analysed in this report, the DPLG, DoH and National Treasury are listed as the lead regulators, assisted by DWAF. This is interesting because, currently, in the absence of such a framework, which acknowledges the inherent 20

DWAF, National Water Services Regulation Strategy, p. 55.

Part 5.3 deals with inter-departmental issues

relating to the DPLG-administered indigent policy framework, which is adapted at the local level and in many municipalities is the main form of FBW allocation (see part 4.8 for background on the indigent policy); Part 5.1.2 highlights the important link between

DWAF and the National Department of Housing, as well as with the provincial housing departments and local authorities which are tasked with housing delivery, in issues relating to housing and water services provision; Part 5.6.1 covers problems around the multi-

departmental facilitation of the Municipal Infrastructure Grant (MIG), which is primarily administered by the DPLG, and which is vitally important for water services provision (see part 4.4 for background on the MIG); Part 5.7.2 deals with drinking water quality

and the relationship between DWAF, local

4.3. The Section 78 Assessment Process The process of deciding what institutional arrangement will be responsible for water and sanitation service provision within a municipality is known as the section 78 assessment process (it is governed by section 78 of the Municipal Systems Act) – it describes the process of formally delineating/appointing a WSP. Historically DWAF was, and in some areas remains, the WSP. There is a push, however, for municipalities to complete the section 78 process in order to institutionalise the entity (itself, a ring-fenced public company or a private concession) that is to execute water services delivery in each municipal area of jurisdiction. The move from DWAF as WSP to local municipality as WSP has shifted the financial and technical burden of water and sanitation service delivery to local municipalities. Those services that had previously been fully subsidised for operating costs under DWAF must utilise cost-recovery mechanisms while drawing as many funds as they still can from national government. The section 78 assessment process is designed to take the local context into consideration when deciding which type of service delivery mechanism (either internal or external) will be most appropriate and effective. The preliminary step in the process is an analysis of current infrastructure, water resources, financial resources and institutional capacity of the municipality. A report on the status quo is then given and the section 78 process begins with an internal assessment, after which a decision is made whether or not to implement appropriate internal service delivery mechanisms or to explore external mechanisms. If the latter is decided, then external assessment is undertaken taking into consideration direct and indirect costs and benefits; effect on the environment, human health, well-being and safety; the capacity and potential

Key Concepts in Water Services Provision

Part 5 details some of the specific linkage/interdepartmental related issues, as follows:

authorities and the DoH in regulating and enforcing water quality standards.

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connectivity of water with other critical services, water services are fundamentally de-linked from the other services. For example, at the local level, water is not viewed through the lens of its health-related component. Similarly, water services are currently not adequately coordinated with housing services. Such de-linking of functions might be related to the constitutional setup in terms of which healthcare and housing services are functional areas of provincial and national legislative competence, while water supply and sanitation are local government matters. It appears that this constitutional arrangement has unnecessarily fragmented functions and services that should be integrated, adversely affecting municipalities’ extension of (all) services to the poor. In this respect, it is hoped that DWAF’s regulatory function appropriately addresses these issues through effective inter-departmental and inter-governmental coordination.

Water Services Fault Lines

future capacity of prospective service providers to furnish the skills, expertise and resources; views of the local community; the likely impact on development and employment patterns in the municipality; and the views of organised labour. Finally a decision is made whether to implement internal or external mechanisms of service delivery within the municipality. Despite the push from national government for municipalities to complete section 78 assessment processes, many municipalities have not yet done so, often due to incapacity. In our study, Lepelle-Nkumpi, Blouberg, Albert Luthuli, Amathole and Msunduzi are yet to complete this process.21

4.4. Municipal Infrastructure Grant (MIG) The Municipal Infrastructure Grant (MIG) is a consolidated conditional grant to municipalities designed to facilitate the eradication of basic services backlogs and cover the capital costs of infrastructure rollout to poor households predominantly, although beneficiaries of the grant may also be municipal services or institutions used extensively by the poor or businesses which are run by the poor.22 The MIG is a temporary measure, officially in place until 2013 or until municipalities are able to adequately raise internal revenue to cover all costs themselves. The calculation of the MIG uses a formula which takes into account the number of water and sanitation backlogs in the municipality, the water and sanitation allocation amount and the total number of backlogs in

No municipality mentioned its awareness of the National Joint Response Team (NJRT), a team comprising people from DWAF, DPLG, National Treasury and SALGA, designed to assist municipalities with building capacity and providing legal, technical and financial assistance in the section 78 assessment processes. 22 DPLG, â&#x20AC;&#x153;Policy Framework for the Implementation of the Municipal Infrastructure Grant (MIG)â&#x20AC;? (5 February 2004) (Policy Framework), p. 3: http://www. DPLG.gov.za/subwebsites/mig/docs/2.pdf. Accessed 15 October 2008. 21

South Africa.23 There is a horizontal split of the MIG allocation to metropolitan and local municipalities based on poverty, backlogs and identification as a node. Because of the two tier system of local government, the amount allocated to each local municipality is shared in a vertical split between the district and local municipality. The methodology for doing this is based primarily on an assessment of where the function for each municipal service lies.24 No MIG funding can be spent apart from that within the pre-existing IDP and approved budget spending. The largest proportion of the MIG fund goes towards funding municipalities, the allocation of which is based on a formula. Another portion of the MIG fund is used for the Special Municipal Infrastructure Fund (SMIF) which is provided to specific municipalities based on an application process. Two types of projects receive this investment; those assisting innovation and those that require regional investment. Some infrastructure projects are more cost effective when they cover adjoining municipalities and the SMIF assists with the capital investment in such projects. There is multi-departmental responsibility for monitoring of the MIG, with the DPLG, DWAF, the Department of Public Works (DPW) and National Treasury each responsible for different aspects.25 Problems with MIG allocation are discussed in part 5.6.1.

4.5. Local Government Equitable Share (ES) The Local Government Equitable Share (ES) is an unconditional grant from national government to local government (meaning that municipalities do not have to report on how they allocate or spend the ES), which serves as the main subsidy for O/M costs. The ES is meant to complement the MIG. The amount allocated to each municipality is determined by assessing fiscal capacity, fiscal efficiency, developmental needs, Ibid., Appendix A, p.2. Ibid., pp. 8-9. 25 Ibid., pp. 11-18. See this for information on the institutional arrangements for the MIG allocation. 23 24

ES Grant = B + D + I – R ± C where

As the sector leader, it is the responsibility of DWAF to define the policy and regulation relevant to support the implementation of FBW and FBSan. DWAF is responsible for assisting WSAs to implement FBS, for monitoring the state of implementation of WSAs, and for determining where interventions and support are required.27 In 2001, a Cabinetapproved Free Basic Water and Sanitation Task Team (FBWSTT) was established, aimed at strengthening cooperative government approaches to the implementation of FBW through “hands on support to targeted municipalities.” The FBWSTT comprises representatives from the DPLG, the South African Local Government Association (SALGA), DWAF and National Treasury.28

B = Basic Service Component which supports

poor households earning less than R800/month; D = Developmental Component; I = Institutional Support Component which

determines the basic cost of administration (determined I = base allocation + [Admin support × Population] + [Council support × No seats]); R = Revenue Raising Capacity Correction (a

proxy figure derived from reported revenue raising capacity information reported to Statistics South Africa (Stats SA) and objective municipal information from Stats SA); C = stabilizing factors (used to ensure that

allocations are not negative due to the revenue raising component. Municipalities are not required to report on how they allocate their ES. There are a number of problems with the ES allocation which are dealt with in part 5.6.2.

4.6. Free Basic Water (FBW) and Free Basic Sanitation (FBSan) Free Basic Water (FBW) and Free Basic Sanitation (FBSan) form part of a government Free Basic Services (FBS) package, which is supposed to be made available to poor households who cannot afford to pay for basic services. The FBS package typically includes: rebates on water, sanitation, electricity and refuse removal to qualifying ‘indigent’ households, and it is the responsibility of the DPLG to introduce the legislation and standards applicable to the implementation of FBS. The DPLG is meant to guide, coordinate and monitor national programmes, and regulate service provision, as well as intervene where necessary, particularly where capacity is required. The DPLG

Free Basic Water (FBW) policy is not legislated per se; however, policy outlining free basic water provision is based on sections of the Water Services Act (specifically sections 3 and 9), as well as the Compulsory National Standards (specifically regulation 3(b)), and provides meaning to the constitutional right to water. Moreover, it is clear from Constitutional Court adjudication that government policies pursued to give meaning to constitutional rights incur the same kinds of obligations as rights and, consequently, may be challenged. In the landmark socio-economic

Key Concepts in Water Services Provision

also provides the required grants to municipalities to enable the delivery of FBS.26

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poverty and backlogs. The ES grant is determined by the formula:

DPLG, “Guidelines for the Implementation of the National Indigent Policy by Municipalities.” Draft Document 1 (November 2005) (Guidelines), p. 21: http://fbs.dplg.gov.za/fbs/site/docs/Document Library/IP/Guidelines.pdf?PHPSESSID=dd245e1e 43caadb037d2946bfb74cd74. 27 Ibid. 28 The FBWSTT has recently initiated the Special Intervention Programme (SIP), the objective of which is to accelerate the implementation of FBW in 36 targeted municipalities and to share the benefits, good practice and lessons learnt from the programme with all municipalities. See: http://www.fbwsip.gov.za/. 26

Water Services Fault Lines

rights case, Government of the Republic of South Africa v Grootboom (‘Grootboom’), the Constitutional Court established at paragraph 42 that, in terms of the state’s obligations regarding socio-economic rights: The state is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The state is obliged to act to achieve the intended result, and the legislative measures will invariably have to be

day for a household of eight people. According to the Strategic Framework, this amount should eventually be increased to 50 litres per person per day, which would mean approximately 12 kilolitres per household per month for an average household of 8 people.32 The 50 litres per person per day allocation is the amount stipulated by international experts as the adequate amount of water per day required to lead a healthy and dignified life.33 It is also the amount that the ANC’s 1994 Reconstruction and Development Programme (RDP) stipulated as a medium term goal:

supported by appropriate, well-directed policies and

In the medium term, the RDP aims to provide

programmes implemented by the executive.29

According to FBW policy, set out in the FBW Implementation Strategy, the volume of 6 000 litres or 6 kilolitres (6kl) per household per month is set as the target FBW amount.30 The policy is flexible and it allows WSAs to decide how they will apply the policy specifically and practically, as well as encouraging better resourced WSAs to increase their FBW amount. According to the FBW Implementation Strategy, municipalities were meant to implement the policy with immediate effect, and those municipalities which could not implement by July 2003 were to be identified and treated as ‘special cases,’ given the highest level of support by DWAF.31 FBW is financed through ES and local tariff structures and can be implemented in three ways: 1. rising block tariffs, which provide the first block free and use higher end tariffs to cross-subsidise; 2. service level targeting whereby water is free for those accessing water via a standpipe or a restricted flow mechanism; or 3. targeted credits and subsidies whereby qualified or targeted users receive a free allocation of water. In most municipalities the amount of FBW is generally 6 kilolitres per household per month, which translates to an amount of approximately 25 litres per person per Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para. 42. 30 DWAF, FBW Implementation Strategy. 31 Ibid., p. 10. 29

an on-site supply of 50 - 60 lcd [litres per capita (person) per day] of clean water, improved on-site sanitation, and an appropriate household refuse collection system. Water supply to nearly 100 per cent of rural households should be achieved over the medium term, and adequate sanitation facilities should be provided to at least 75 per cent of rural households. Community/household preferences and environmental sustainability will be taken into account. 34

It is notable that the City of Johannesburg’s FBW policy has recently been successfully challenged as insufficient to meet the basic needs of large, poor, urban households in the Johannesburg High Court case, Mazibuko & Others v City of Johannesburg & Others (Mazibuko). In his judgment, Johannesburg DWAF, Strategic Framework, p. 29. Dr Peter Gleick, President of Pacific Institute for Studies in Development, Environment, and Security, has stated that a basic requirement for water per person is 50 litres per day, which translates to about 12kl/month for a household of eight people. See Mazibuko & Others v City of Johannesburg & Others (Mazibuko) (case no 06/13865), judgment of 30 April 2008, para. 170: http://web.wits.ac.za/Academic/ Centres/CALS/BasicServices/Litigation.htm. 34 See ANC, RDP, at note 4, para. 2.6.7. 32 33

4.7. Tariff Policy Local WSAs have the constitutional mandate to set water services tariffs in their jurisdictions, and national government is able only to determine principles and minimum national norms and standards for the setting of tariffs. National Treasury sets guidelines for Mazibuko judgment, at note 33, para. 168. 36 DWAF, Strategic Framework, p. 31. 37 Speech by Minister of Water Affairs and Forestry Lindiwe Hendricks at the Launch of National Sanitation Week, (Johannesburg, 26 May 2008): http://www.polity.org.za/article.php?a_id=134226. Accessed 15 October 2008. 38 DWAF, National Water Services Regulation Strategy, p. 89. 35

The Strategic Framework states that: charging for water services is essential in order to generate funds for operating, maintaining and investing in water systems. However, tariffs must take into account the affordability of water services for the poor. User charges will be based on the volume of water used and wastewater generated wherever practical and will reflect full financial and economic costs, taking into account the subsidies necessary to ensure the affordability of water services to poor households.40

The amount that individual users pay for services generally should be in proportion to their use of that service.41 Finally, all connections providing an uncontrolled volume must be metered and tariffs shall be applied in proportion to water use.42 A number of requirements must be followed when developing water and sanitation tariff policies and some key issues relating to tariff structures include:

Key Concepts in Water Services Provision

At present a Free Basic Sanitation (FBSan) policy has been developed but has not yet been approved or implemented, and DWAF is meant to be developing a FBSan strategy together with a set of guidelines to assist WSAs to implement the FBSan policy.36 DWAF has acknowledged that the provision of basic sanitation has been slow and neglected in comparison to water provision in South Africa, and that not enough has been done or attention given to sanitation.37 In the meantime, at local government level, basic sanitation provision is generally provided on an ad hoc basis and it is subject to the municipality to decide what technology is used, taking into account settlement conditions and operating costs. The regulation of sanitation is a special case in the sense that on-site sanitation infrastructure typically belongs to and is situated on private property, and sanitation is also often neglected in favour of the regulation of water supply.38

increases in revenue and expenditure for municipalities, which must usually be below the rate of inflation, however this can be negotiated. DWAF has the power to impose price-caps on water tariffs. While the implementation of pro-poor tariffs is prescribed in section 10 of the Water Services Act, and DWAF can require WSAs to implement pro-poor tariffs, it cannot prescribe the precise levels or prices of tariffs. In the future, it is envisaged that DWAF will exercise a regulatory oversight role over WSAs with respect to the setting of tariff levels for water services.39

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High Court Judge Moroa Tsoka ordered the City of Johannesburg to provide 50 litres of FBW to each person in a poor community of Soweto (roughly double the existing allocation for a household of eight but substantially more for the average household size of sixteen people).35

Â&#x192;Â&#x192; Revenue requirements: water service institutions

must take into account realistic operations and maintenance (O/M) costs, interest costs, depreciation charges, provisions for bad debt and 41 42 39 40

DWAF, Strategic Framework, p. 33. Ibid., p. 26. Ibid., p. 33. Ibid., p. 34.

Water Services Fault Lines

future costs of infrastructure and determine the overall cash needs to secure a financially viable and sustainable operation. Costs: all WSAs must aim to provide households

with a basic level of water supply and sanitation. The costs associated with the provision of this basic level of service should in the first instance be met through the MIG and ES. Any additional costs to provide or maintain water services infrastructure must be met through internal revenue collection.

services in terms of free basic water and free basic sanitation. Special tariffs: may be implemented by WSAs

during periods of water restrictions to reduce water use to within sustainable levels. Regulations and guidelines: DWAF will exercise a

regulatory oversight role over WSAs with respect to the setting of tariff levels for water services. The national regulations setting out norms and standards for tariffs will be revised and updated to be consistent with the policies in the Strategic Framework. DWAF will develop guidelines on the development of water and sanitation tariff policies and on setting tariffs. These will include guidelines for determining a reasonable rate of return on assets. DWAF will also develop a set of sample water and sanitation tariff policies reflecting best practice for use by water services authorities.43

Contributions: the contribution from tariffs to the

general fund should be less than 10 percent of income for the sale of water and no income from sanitation charges should subsidise other services. Consumer categories: retail water and wastewater

tariffs shall distinguish between domestic, industrial, and other consumers. Levels of service: retail water and wastewater

tariffs shall distinguish between different levels and standards of service and between at least the following: a communal water service; where a controlled (limited or restricted) volume of water is supplied; and where an uncontrolled volume of water is supplied; where a household is connected to a sewer; and where a household is not connected to a sewer. Cross-subsidies: tariffs shall support the viability

and sustainability of water services provision through cross-subsidisation and discourage wasteful or inefficient use. Marginal domestic tariff above the basic amount:

where domestic consumers use more than the defined basic amount, WSAs shall not be entitled to recoup the full financial cost of providing the basic amount in the marginal tariff for the next small increment consumed i.e. the free basic amount (normally 6kl/month) shall not fall away if the consumer uses more than this.

Retail water tariff and sanitation charges (including bulk water and wastewater tariffs set to recover retail costs) are set by the WSA in terms of the Water Services Act and the Municipal Systems Act. Section 56(6)(c) of the National Water Act states that in setting a pricing strategy for water use charges, the Minister must consider measures necessary to support the establishment of tariffs by WSAs in terms of section 10 of the Water Services Act, and the use of lifeline tariffs and progressive block tariffs. According to section 10(1) of the Water Services Act, the Minister may, with the concurrence of the Minister of Finance, from time to time prescribe norms and standards in respect of tariffs for water services. Section 10(2) states that these norms and standards may – (a) differentiate on an equitable basis between – (i) different users of water services; (ii) different types of water services; and

Tariff increases: WSAs must strive to keep tariff

increases below the rate of inflation. Tariff increases must be based on the efficient use of resources and the actual cost increases incurred. Subsidies: when subsidies for water services

are applied, they should be prioritised for the provision of basic water supply and sanitation 22

Ibid., pp. 34-35.

(c) place limitations on the use of income generated by the recovery of charges; (d) provide for tariffs to be used to promote or achieve water conservation.44 According to section 10(4) of the Water Services Act, no water services institution may use a tariff which is substantially different from any prescribed norms and standards. The prescribed national norms and standards for water services tariffs are set out in the Norms and Standards in Respect of Tariffs for Water Services (20 July 2001) (Norms and Standards), which state in section 6(1) that tariffs for an uncontrolled supply of water must include a volume based charge that (a) supports the viability and sustainability of water supply services to the poor, and (b) discourages wasteful or inefficient water use. The Norms and Standard also stipulate that these requirements are deemed to have been met where the tariff is set as a volume based charge that provides for a rising block tariff structure that includes â&#x20AC;&#x201C; (a) three or more tariff blocks with the tariff increasing for higher consumption blocks; (b) a consumption level for each block defined as a volume consumed by a household during any 30 day period; (c) a first tariff block or lowest tariff block with a maximum consumption volume of six kilolitres and which is set at the lowest amount, including a zero amount, required to ensure the viability and sustainability of water supply services; and (d) a tariff for the last block or highest consumption block set at an amount that would discourage high water use and that reflects the incremental cost that would be incurred 44

Section 10 of the Water Services Act.

According to regulation 10(2) of the Regulations relating to Compulsory National Standards and Measures to Conserve Water (Compulsory National Standards), in order to manage water services efficiently, it is important to be able to measure and quantify the services provided to consumers and to separate these figures in terms of user sectors. Thus, the WSA is required to subdivide their consumers into specific user sectors, with each sector consisting of consumers with similar consumption patterns e.g. residential, commercial, industrial etc. Through the separation and measurement of supply to these sectors, the WSA is able to record the total quantity of water services used by each user sector. This information would enable WSAs to monitor whether resources are being allocated on an equitable basis and would assist in determining the tariff structure.46 Section 4(1) of the Norms and Standards states that a water services institution must, when setting tariffs for water services provided to consumers and other users within its area of jurisdiction, differentiate, where applicable, between at least the following categories: (a) water supply services to households; (b) industrial use of water supplied through a water services work; (c) water supply services other than those specified in paragraphs (a) and (b); (d) sanitation services to households; (e) discharge of industrial effluent to a sewage treatment plant; and (f) sanitation services other than those specified in paragraphs (d) and (e). The purpose of this regulation is to allow for

Key Concepts in Water Services Provision

(b) place limitations on surplus or profit;

to increase the capacity of the water supply infrastructure to meet an incremental growth in demand.45

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(iii) different geographic areas, taking into account, among other factors, the socio-economic and physical attributes of each area;

Section 6(2) of the Norms and Standards for Water Services Tariffs: Regulations under section 10 of the Water Services Act (Act 108 of 1997) (Norms and Standards). 46 Regulation 10(2) of the Regulations relating to Compulsory National Standards and Measures to Conserve Water (8 June 2001) (Compulsory National Standards). 45

Water Services Fault Lines

differentiation of tariffs between different categories of users. At the local government level, chapter 8 of the Municipal Systems Act regulates municipal services and section 74 deals with service tariffs. According to the Municipal Systems Act, a municipal council must adopt a tariff policy that reflects a number of principles.47 One of these principles in section 74(2) (c) of the Act states that “poor households must have access to at least basic services through i) tariffs that cover only O/M costs, ii) special tariffs or life line tariffs for low levels of use or consumption of services or for basic levels of service; or (iii) any other direct or indirect method of subsidisation of tariffs for poor households.”48 Also, a tariff policy may differentiate between different categories of users, debtors, service providers, services, service standards, geographical areas and other matters as long as the differentiation does not amount to unfair discrimination. Within this legislative and policy framework, however, a vast range of different tariffs exist across South Africa, both within and across municipalities. In some cases tariffs are admirably pro-poor, however in other cases, as outlined in part 5.4, they are not.

4.8. Indigent Policy Due to the level of unemployment and poverty

and implementation of an indigent policy. In 2005, the DPLG published its “Framework for a Municipal Indigent Policy”, as well as the “Guidelines for the Implementation of the National Indigent Policy by Municipalities” (Guidelines). The policy framework is meant to provide a foundation upon which municipalities can build their own indigent policies, as well as to provide a basis for actions which national government will take in terms of the constitutional responsibilities municipalities are given to ensure that all have acceptable access to basic municipal services.50 The guidelines were drawn up to assist municipalities with the implementation of their indigent policies as defined within the national indigent framework. Municipalities must decide how they are going to implement their indigent policy as per the national guidelines; however the DPLG has acknowledged that municipalities have experienced many difficulties in implementing indigent policies to date. These problems include: deciding whether to define beneficiaries in terms of households, account holders or citizens; defining what constitutes a household; defining who qualifies as indigent; targeting methods; accessing non-account holders; administrative burdens on the municipality; verifying application details; lack of funds to implement the FBS programme; and finally, assessing the real impact the FBS programme is having on the quality of life of the beneficiaries.51 These problems are discussed further in part 5.3.

within municipal areas, there are both households and citizens who are unable to access or pay for basic services; this grouping is referred to as the “indigent”. A municipality therefore needs to develop and adopt an indigent policy to ensure that the indigent can have access to the package of services included in the FBS programme.49

Section 104(1)(a) of the Municipal Systems Act states that the Minister may make regulations or issue guidelines to provide for or regulate the development See section 74 of the Municipal Systems Act 32 of 2000 (Municipal Systems Act) for a list of these principles. 48 DWAF, Strategic Framework, p. 33. 49 DPLG, Guidelines, p. 14. 47

DPLG, “Framework for a Municipal Indigent Policy.” Draft (September 2005), p. 1: http://fbs.dplg.gov.za/ fbs/site/docs/DocumentLibrary/IP/Policy.pdf. 51 DPLG, Guidelines, pp. 16-17. 50

Five

Fault Lines

5.2. Free Basic Services (FBS) 5.3. Indigent Policy as the FBS Targeting Mechanism

National government is committed to eliminating the

5.4. Tariffs

backlog in basic water services and to progressively

5.5. Credit Control Enforcement - Water Disconnections and Restriction Devices

improving levels of service over time in line with the original aims of the Reconstruction and Development Programme in 1994. The first step up the water

5.6. Financial and Technical Assistance

ladder is the provision of at least a basic water and

5.7. Water Quality

sanitation service to all people living in South Africa.

5.8. Water Demand Management (WDM)

This is the most important policy priority and

5.9. Public Participation.

government will commit adequate funds to make

These fault lines do not cover all issues relating to the municipal provision of water services - particularly in rural areas, which we have not investigated as fully as urban areas - however, they are the cross-cutting themes that emerged from the interviews and research. We believe they are areas that impact greatly on access to water and sanitation and each requires further indepth analysis.

this possible within the next few years. The next

5.1. Eliminating Backlogs and Improving Levels of Service

its commitment of grant funds over time to support

Eliminating backlogs, meaning extending water services to those with none, and improving levels of service, meaning providing increasingly better levels of service to those with rudimentary access (referred to as ‘stepping up the water ladder’ by DWAF), are vital aspects of water services provision across South Africa.

increasing the basic level from 25 to 50 litres per

step is an intermediate level of service such as a tap

Fault Lines

5.1. Eliminating Backlogs and Improving Levels of Service

These objectives are in line with the formulation of section 27 of the Constitution, which guarantees everyone’s right of access to sufficient water (broadly equating with the eliminating backlogs component) and demands the progressive realisation of the right of access to sufficient water within available resources (broadly equating with the improving levels of service component). According to the section on ‘the water ladder’ in the Strategic Framework:

in the yard. Water services authorities are expected to assist communities to achieve intermediate and higher levels of service wherever practical, affordable

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During our interviews with local officials from the fifteen municipalities, several recurring themes and problematic areas were identified. We have covered these issues in this part under ‘fault lines.’ The nine fault lines identified and elaborated on here are:

and sustainable without compromising the national policy priority of universal access to at least a basic level of service. National government will increase households to step up the services ladder. Basic levels of service will also be reviewed in future to consider person.52

DWAF, Strategic Framework, p. ii.

Water Services Fault Lines

This fault line deals with systemic barriers to eliminating backlogs and improving levels of service, which were identified by municipalities. It should be noted that, particularly in relation to water services for the poor, there are substantial overlaps between this part and part 5.2 on FBS. However, because there is a distinction between getting connected to water services infrastructure (physical access, described in this part) and being able to enjoy the services even if you are very poor (economic access, as advanced through FBS, outlined in part 5.2), we have analysed these issues over two parts. All municipalities mentioned backlogs and improving levels of service as major challenges. A persistent problem is that many households have poor access to water, are still using unacceptable methods of sanitation, and are without the prospect of improving their levels of service in the foreseeable future. Furthermore, the reality is that women bear the burden of carrying water from rivers and streams when there is an inadequate water supply. Thus providing adequate access to water services plays a critical role in attempts to promote both socio-economic and gender equality. This fault line examines: delays in water and sanitation provision; adequacy of water and sanitation supply; and problems with third party or intermediary

control of water supply in the context of rural farm workers and dwellers and inner city tenants.

5.1.1. Delays in providing water and sanitation Levels of water services provision are largely determined by the typology and geography of human settlements. The largest backlogs experienced in South Africa, apart from those living in informal settlements, exist in municipalities with large rural populations or many households living in isolated or scattered villages. A preliminary discussion document on cross-cutting issues in water services provision by The Water Dialogues, found that the scale of backlogs in rural areas, and the systemic incentives for municipalities to prioritise urban areas, result in continued urban 26

bias. Throughout the Water Dialogues case studies the researchers found a stark contrast between service provision in rural and urban areas, and while for the most part this has a strong basis in historical inequities, there is evidence that urban areas are still being prioritised over rural areas.53 According to eThekwini, the municipality has a backlog for water of 55,432 households (6.72 percent) and for sanitation of 210,087 households (25.48 percent). According to the municipality, it is currently confirming the nature and extent of the backlogs in service delivery across the entire metropolitan area, and a significant amount of verification work is needed to determine accurate backlog numbers for all engineering services and to put together a coordinated plan for eradicating these backlogs over a period of time. According to Amathole District Municipality, a 2007 study done on backlogs in Amathole found that there are a total of 309,000 people (31,8 percent) who still do not have a basic level provision of water, and approximately 82 percent who do not have access to a basic level of sanitation. In Madibeng, the backlog for water is approximately 20,850 households (20.75 percent), and for sanitation it is 41,824 households (41.63 percent). Albert Luthuli Municipality has a huge sanitation backlog, with about 62 percent of the municipal area below the basic level of sanitation. In Dr J.S. Moroka Municipality, approximately 75 percent of households are connected to water and 25 percent to sanitation. According to the municipality, the backlog for water is 5,086 households at an estimated cost of R30.5 million to eradicate and the backlog for sanitation is 41,008 households at an estimated cost of R155.8 million to eradicate. The municipality stated that the levels of service provided are ultimately linked to issues of cost-recovery and sustainability and that it would take about ten years to eradicate water backlogs and twenty years to eradicate sanitation 53

The Water Dialogues, “Preliminary Discussion Document on Cross Cutting Issues from WD-SA’s Ugu, Ilembe and Bushbuckridge Pilot Case Studies.” (October 2008), p. 37.

5.1.2. Adequacy of water and sanitation supply While some municipalities are still struggling to connect households to water and sanitation grids/ systems, many more municipalities are not making 54

DWAF, Water Services National Information System (WS NIS): http://www.dwaf.gov.za/dir_ws/wsnis/ default.asp?nStn=pg_BuildReports&usersel=true&Pr ov=MP&curlevelid=1&wsacode=MP&curPerspectiv eID=2. Accessed 20 October 2008.

In informal settlements, water from communal standpipes is commonly not charged for, as it is assumed that households have difficulty carrying more than 6kl water per month and thus count this as FBW. In the case of sanitation, in rural villages it is often the norm for households to make do with Ventilated Improved Pit (VIP) toilets for sanitation and boreholes for water. In informal settlements, a communal standpipe and the bucket system (or ‘pail system’ as it is called in Nelson Mandela Bay) is often used, and the bucket system of sanitation is unfortunately still practiced by many throughout South Africa. It is often argued that dry systems such as VIP toilets are an adequate form of sanitation. However, some question the appropriateness of ‘dry systems’ for humid environments where, in fact, faecal matter does not easily dry. A further problem with VIPs is that they need to be emptied regularly by the municipality, which often does not happen.

Fault Lines

During our research we found many discrepancies in backlog statistics among the data provided by municipalities, Stats SA and DWAF. For example, according to Dr J.S. Moroka Municipality, it has a water backlog of 5,086 households and a sanitation backlog of 41,008 households. According to Stats SA figures, taken from Gaffney’s Local Government in South Africa 2007-2008, the municipality has 13,939 households without access to water and 31,774 households without access to sanitation. According to DWAF’s Water Services National Information System (WS NIS), as of April 2008 the municipality has a water backlog of 12,142 households and a sanitation backlog of 40,807 households (measured as households below RDP level of service).54 The backlogs data available appears to be generally unreliable, which is highly problematic given that municipalities’ water services planning is based on these backlogs statistics, as is external funding like the MIG allocation.

much progress in ensuring adequate levels of basic water supply and sanitation – water on-site or in the yard and water-borne sanitation. When we asked if local communities were given a choice of their level of water service, Lepelle-Nkumpi municipality stated that communal standpipes are being used until everyone reaches the RDP level of service, and if people can afford to put in a metered tap they may do so, however the municipality discourages the connection of yard taps because it diverts attention away from addressing backlogs. This is problematic as it means that people are stuck with communal standpipes and are not able to move up ‘the water ladder’ because the municipality’s only focus is on addressing backlogs as opposed to improving levels of service. Meeting a minimum level for all is critical, but it is not sufficient for demonstrating that all available resources are being used for progressive realisation of the right to water and sanitation. The adequacy of the basic water services provided in poor areas, if indeed it is provided, is examined further under the analysis of FBW in part 5.2.

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backlogs. Lepelle-Nkumpi echoed this sentiment, stating that, realistically, it would take them more than twenty years to eradicate water and sanitation backlogs. At their current rate of implementation of only 162 households per village for 15 villages, they can only eradicate approximately 1,620 households per year. The question remains how they will be able to eradicate a backlog of over 50,000 households with increasing development taking place and an evershifting mark.

Water Services Fault Lines

Dr J.S. Moroka Municipality has a high sanitation backlog of over 41,000 households and a water supply backlog of about 5,000 households. The municipality stated that the installation of water-borne sanitation systems is not advised due to the increase in water demand and the limitation of the O/M capability of the municipality, and that where these systems have already been installed, cost-recovery and revenue collection must be implemented and enforced. However, Kathy Eales notes that – Many VIPs are now full and unusable. In many areas, VIPS are now called full-ups. Some pits were too small, or were fully sealed…. South Africa’s household sanitation policy is grossly inadequate. It speaks primarily to dry systems, and does not clarify roles and responsibilities around what to do when pits are full. National government under-estimated the scale of technical support required.55

This suggests such systems are not necessarily more affordable, and the key issue is prioritisation. In May 2008, the Department of Water Affairs in the Western Cape announced that it had successfully eradicated the use of the bucket system in all formal areas in its municipalities. DWAF has spent R57 million in the Western Cape to eradicate the bucket system in formal areas and to get rid of its sanitation backlogs and at the announcement of its success, a DWAF spokesperson was quoted as saying: “One of the reasons for the backlog is that sanitation has not been regarded as a priority, thus the need to raise the profile of sanitation in order to change the mindsets of municipalities and communities through advocacy programmes and campaigns.”56 South Africa’s Amisi, B., Bond, P., Khumalo, D. and Nojiyeza, S., “The neoliberal loo” (18 February 2008): http://www. ukzn.ac.za/ccs/default.asp?2,40,5,1514. Accessed 15 October 2008. 56 Breytenbach, K., “No more bucket system for Cape.” IOL (27 May 2008): http://www.iol. co.za/index.php?set_id=1&click_id=124&art_ id=vn20080527055659107C192455. Accessed 15 October 2008. 55

National Sanitation Week was held in May 2008, coinciding with 2008 being the International Year of Sanitation by the United Nations.57 Indeed, raising the profile and the importance of adequate sanitation is imperative, and more research and creative thinking needs to be encouraged in this sphere of water services provision. A structural difficulty in going beyond a very basic level of service is the current policy setting, where water services provision is intrinsically bound with that of the housing delivery process and the formalisation of townships and informal settlements through National Department of Housing or provincial and/or local government housing projects. Those living in informal settlements are often left at a basic or minimum level of service for a long period of time while they wait to be allocated to a new formal housing project, or until in situ upgrading is completed.58 The national “Upgrading of Informal Settlements” housing programme, as set out in Chapter 13 of the National Housing Code,59 has unfortunately been slow to get off the ground at both the national and local level, and has left millions of poor households living in limbo, in shacks without access to electricity or adequate water and sanitation. The programme states that “public sector investment within informal settlements is restricted as a result of the illegal status of settlements. Informal settlements accordingly lack access to basic municipal engineering services such as water, sanitation, electricity, roads SA: Hendricks: Launch of National Sanitation Week.” Polity (26 May 2008): http://www.polity.org.za/ article.php?a_id=134226. Accessed 15 October 2008. 58 Basic, minimum or RDP level of service generally refers to a communal standpipe of a distance no more than 200m from the house or stand. 59 National Department Of Housing, “National Housing Programme: Upgrading Of Informal Settlements.” Chapter 13 of the National Housing Code (October 2004): http://web.wits. ac.za/NR/rdonlyres/74FBBB09-90B0-40CEA04D-A60BCA2E18C4/0/Ch13finalversion 19Oct2004InfSettleUpgrProgr.pdf. 57

60 61

Ibid., para. 13.3.1, p. 10. Huchzermeyer, M., “Uplift slums, don’t destroy them.” The Mercury (12 July 2007): http://www.themercury. co.za/index.php?fArticleId=3928976. Accessed 15 October 2008.

Integrating housing policies and plans with those of water services within municipalities is supposed to be undertaken through the IDP, which should ideally incorporate and align the water services plan as described in the WSDP and the housing sector plan for the municipality.

5.1.3. Problems with third party control of water supply Another major structural problem regarding the elimination of backlogs is that many people are living in situations where their water services are governed and controlled by an intermediary or third party that is not the local authority. There are many cases where people who qualify for FBS cannot access water or sanitation services because they are mediated through a third party that controls the relationship between them and the municipality or WSA. This generally occurs in two situations: in rural or farming areas where farm workers and dwellers living on privatelyowned farms are reliant on the farmer for their water supply; and in urban centres and inner cities where tenants living in flats are reliant on their landlords as an intermediary for their water supply, or ‘unlawful occupiers’ who have no relationship with the WSA because they are living in collapsed sectional title units or in buildings with absentee landlords.

Fault Lines

According to Ekurhuleni, they are facing a major problem in that as people are moved from informal settlements into formal housing, more people simply occupy their stands and the backlog of services remains constant despite the municipality’s best efforts. Their policy for formalising service provision remains that services are provided through the provincial department’s housing programme to formally developed housing areas. The municipality stated that in terms of sanitation provision in informal settlements, most households have access to self-dug pit latrines. A Roll-Out Plan (part of the Department of Housing’s Migration Plan) is in place and by 2011 and 2014 the provision of informal settlements with water and sanitation should be complete. For those in need of sanitation post-2010, dry sanitation will be provided. However, a major problem is that when people are eventually allocated free or subsidised

government houses, it is often the case that they cannot afford to pay for the services which are provided with the house, and are subsequently disconnected or restricted through credit control processes, and must look elsewhere to meet their water and sanitation needs.

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and walkways and lighting. Most informal settlements also typically lack government-funded social amenities and economic infrastructure. For the same reason, inhabitants of these settlements had no incentive to date to invest their own resources in the areas.”60 The fact that this programme has not taken off and that municipalities have generally been unwilling to invest time and money to extend services to these so-called ‘informal’ and ‘illegal’ areas, is highly problematic. The aim to eradicate informal settlements by 2014 has been a controversial element of housing politics at national, provincial and municipal level throughout South Africa, and according to Huchzermeyer, many governments, including South Africa, have failed to differentiate between the normative principle of the slogan ‘cities without slums’, and the operational target of improving the lives of shackdwellers, a fundamental part of which extends to water services provision.61

DWAF has a 2005 document entitled “Ensuring Water Services To Residents On Privately Owned Land: A Guide for Municipalities” which deals with issues around providing water and sanitation services on privately owned land in a range of contexts, including: commercial farms, game parks, mine owned land, church owned land, industrial owned

Water Services Fault Lines

land including privately owned enterprises, and sectional title/residential complexes and estates.62 Each municipality is meant to conduct a municipal survey of “privately owned land”, profile residents on such land, assess current levels of service and identify the “water services intermediary.” Each municipality should also allocate funding for provision, including accessing MIG grants, set by-laws to regulate relationships, and monitor and regulate water services intermediaries. However, these guidelines are generally not being implemented adequately, and worse still, municipalities interviewed were simply not aware of the existence of the guidelines. In the meantime, those living on farms and in collapsed sectional title units or buildings with absentee landlords continue to suffer. These are often the most vulnerable and marginalised people for whom FBS are a necessity.

allow the municipality to provide water and sanitation on the private property, the protocol is to provide a communal standpipe and a VIP toilet just outside of the property. In Cape Winelands District Municipality the strategy is to financially incentivise farm owners to improve the water and sanitation facilities available to farm workers resident on their farms via the Rural Subsidy Scheme. A farmer for example, would provide water and build a sanitation structure, which would subsequently be investigated by health inspectors. The municipality claims they have taken action against some farmers for not providing water and sanitation after an inspection, which has included writing letters and taking a few farmers to court, however the extent to which farmers are effectively monitored in their provision of adequate water services to those living on their property is unclear.

It is also notable that a report published by the Department of Land Affairs (DLA) considers these guidelines as only a part solution in land reform situations: “on further scrutiny they do not appear to provide a sustainable solution for service provision on privately owned land acquired through the land reform programme…The challenge for DLA, in conjunction with the local authority and DWAF, is to find the correct and most appropriate route to ensure that municipal services are delivered to land reform projects with a settlement component.”63

In urban and inner city scenarios, the intermediary is generally an absentee owner or a landlord through which poor tenants or ‘unlawful occupiers’ living in sectional title buildings (often ‘collapsed’) or rental apartments are meant to liaise in order to obtain (at least) FBS from the municipality. The lack of implementable and enforceable guidelines to regulate these relationships is a major hindrance to extending people’s access to adequate water and sanitation.64 It is acknowledged that reaching and providing services to groups such as farm workers and dwellers and inner city unlawful occupiers is difficult, however it is essential to meet the water services needs of everyone in South Africa, particularly vulnerable and marginalised groupings.

In farming areas the intermediary is often the farmer on whose land farm workers or dwellers reside, and who is largely responsible for water and sanitation provision. Msunduzi stated that one of their biggest challenges has been the delivery of basic services to farm lands. In farming areas, if farmers refuse to

DWAF, “Ensuring Water Services To Residents On Privately Owned Land: A Guide for Municipalities.” Version 1 (July 2005): http://www.dwaf.gov.za/ Documents/Other/WS/POLGuidelinesJun05.pdf. 63 Sustainable Development Consortium, “Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa.” Department of Land Affairs, Commission on Restitution of Land Rights, Belgian Development Cooperation and Belgian Technical Cooperation. (2007), chapter 9.

For more on the structural difficulties in accessing FBS in inner city scenarios, see Wafer, A., Dugard, J., Ngwenya, M. and Sibanda, S., “A tale of six buildings: the lived-reality of poor people’s access to basic services in Johannesburg’s inner city.” Centre for Applied Legal Studies (April 2008): http://web.wits.ac.za/Academic/ Centres/CALS/BasicServices/ResearchReports.htm.

5.2. Free Basic Services (FBS) The introduction of Free Basic Services (FBS) around 2001 brought to an end, at least on paper, the situation in which water and sanitation infrastructure had been extended to poor communities (in other words, the backlog had been addressed), but poor people were still unable to access water services because of not being able to afford water bills (in cases of water-borne sanitation, their sanitation services were also adversely affected). While the FBS policy was largely politically motivated (it was announced in the run-up to the municipal elections in 2000), it did provide the basis for a more progressive approach towards water services provision, in which the right of access to adequate and sufficient water and sanitation is acknowledged to be about economic as well as physical access. However, the reality is that municipalities have faced many difficulties with its implementation, and at present FBSan only exists in an ad hoc manner, differing greatly from municipality to municipality. According to the DPLG, 74 percent of indigent households with infrastructure had access to FBW, as of April 2007. While this figure is in any event highly unlikely, the fact is that many indigent households do not have access to adequate infrastructure, and even when they

the absence of FBS provision within some

municipalities; insufficient or inappropriate FBS provision; and punitive conditionalities placed on poor

households to access FBS.

5.2.1. Absence of FBS provision As outlined in part 4.6, there is still no FBSan policy in place, which is highly problematic and results in an extremely ad hoc and inequitable approach to FBSan at the municipal level. In terms of FBW, according to the FBW Implementation Strategy, every poor household should receive 6kl FBW per month. Notwithstanding problems with sufficiency and targeting (discussed below), there are many municipalities which are admirably implementing the FBW policy. However, worryingly, there are clearly still municipalities, generally rural and under-resourced, which are not providing any FBW or FBSan to poor households within their jurisdiction. This is obviously tied in closely with levels of service, as discussed in part 5.1, and often the lack of sophisticated infrastructure and water and sanitation delivery mechanisms in rural areas prevent an accurate metered allocation of FBW and FBSan. Communal standpipes or diesel pump boreholes are generally used in these areas. It is clear that the provision of FBSan is a specific, and major, problem, with many municipalities simply not providing any FBSan to the poor.

Fault Lines

In many ways the most difficult fault line – the challenge to eradicate backlogs and improve levels of water and sanitation provision – is the easiest to conclude. It is clear that there is an urgent need to ensure that everyone has access to adequate and sufficient water and sanitation provision. Indeed, surely there can be no more pressing priority for South Africa, suggesting that all resources, financial and technical, should be focused on achieving this goal. Ensuring everyone’s access to water services promotes human development and health, as well as gender equality.

can access FBS, the provision is often insufficient or comes with punitive conditionalities. This fault line deals with the provision of FBS. We have identified the following problems:

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5.1.4. Conclusion and recommendations on eliminating backlogs and improving levels of service

Through our research we discovered that Dr J.S. Moroka Municipality was not providing any FBW or FBSan, despite the fact that it had a FBS policy in place and acknowledged the strategic importance of providing FBS. It seems that while municipalities often have a FBS policy in place, they often have no means of implementing it, and the implementation of the

Water Services Fault Lines

policy is not enforced. According to its 2007 WSDP, the FBW initiative in Dr J.S. Moroka Municipality has not been successfully implemented and they are putting in place measures to increase those on the indigent register so as to procure more funding via ES, as well as to ensure those not registered as indigent pay for the consumption of water. Moses Kotane Municipality provides 6kl of FBW to everyone but there appears to be no FBSan provision, and Blouberg also provides no FBSan. When asked about FBSan provision, municipal officials often referred to the free installation and maintenance of VIP toilets, the provision of the bucket system for free, or slightly lower flat rates on sewerage as evidence of FBSan.

5.2.2. Insufficient or inappropriate FBS provision As has been mentioned, some municipalities are still not providing FBS to poor households, however there are many that are and this is encouraging. But there are problems relating to the sufficiency and appropriateness of FBS provision. The national FBW policy assumes that 6kl per household per month (working on an average household of eight persons) or 25 litres per person per day is sufficient, however DWAF has acknowledged that this should ideally be increased to 12kl per household per month or 50 litres per person per day. It is clear that some of the better resourced metropolitan municipalities are taking the initiative to increase their FBW allocation to indigents, but others remain stuck at the minimum level. It is up to municipalities whether to provide the minimum FBW universally to all households, whether to target poor households and provide them with more FBW and if so, how to target the poor. Seven of the municipalities in our study provide 6kl FBW per month to all households, regardless of income. Examples of municipalities who are providing more than the 6kl per household per month to indigents include Ekurhuleni which provides 9kl/month, Nelson Mandela Metropolitan which provides 8kl/month, City of Cape Town which provides an effective 9kl/ 32

month,65 and eThekwini which is increasing its FBW amount to 9kl/month for indigent households. These are all relatively large and well-resourced metropolitan municipalities. When it comes to largely poor and under-resourced municipalities, the 6kl per household per month minimum amount has effectively become the maximum in terms of the FBW provision, where it is provided at all. As has been mentioned above, the national FBW policy accepts that 6kl per household per month (working on an average household of eight persons) or 25 litres per person per day is sufficient, however DWAF has acknowledged that this should ideally be increased to 12kl per household per month or 50 litres per person per day. This is the amount that the RDP stipulated as a medium term goal and international experts have stated that 25 litres per person per day is insufficient water to lead a healthy and dignified life, especially for people living with HIV/AIDS. Thus, the general consensus is that the FBW amount should be increased accordingly, at least to a minimum of 50 litres per person per day. An area of concern is the allocation of FBW on a per household basis, which is the norm. In poor areas there are often more than eight people living in the main house, and there are typically backyard dwellers living on the property, thus it is often the case that many residents are excluded in the determination of the 6kl per household per month allocation. In Mazibuko, Johannesburg High Court Judge Tsoka found that Phiri households consist of on average minimum persons of 16, and that in Phiri the number of residents per yard far outnumber members of a household because there are more informal settlers in a yard than members of a household. According to Judge Tsoka, â&#x20AC;&#x153;this means 65

In Cape Town, 6kl of FBW is provided to indigents as well as a R30 grant, which purchases approximately 2.8kl. In addition, the city provides 4.2kl of free sewerage. Thus, the net result is that indigent households are able to consume 13kl free water per month (8.8kl of water and 4.2kl of sewerage).

5.2.3. Punitive conditions to accessing FBS A disturbing trend witnessed in several municipalities is the requirement for poor households to agree to certain water restricting devices, including flow restrictors and prepayment meters (PPMs) in order to qualify as indigent and access FBS (see part 5.3.3 for more on the burdensome requirements for indigent status). As discussed in part 5.5 on credit control enforcement, flow restrictors and PPMs restrict access to water to unacceptable levels.

Mazibuko judgment, at note 33, para. 168.

At present FBS are provided in an ad hoc manner by municipalities, with widely varying compliance with national standards. Some municipalities do not supply FBS at all and some supply only the minimum FBW amount without any FBSan. The lack of any real national monitoring or enforcement by DWAF of the implementation of its FBW policy at the local level, as well as the absence of a FBSan policy, is highly problematic. There is clearly an urgent need for DWAF to formulate a FBSan policy and to monitor and enforce it. Linked to the goals of eradicating backlogs and improving levels of service, such a policy should determine what kinds of sanitation services are deemed appropriate for particular environments and municipalities should be encouraged to provide the best possible sanitation services with the best possible FBSan. In addition, in relation to FBW, DWAF must follow up on its claims in its 2002 FBW Implementation Strategy, that it would identify, treat as ‘special cases’ and give their highest level of support to those municipalities which could not implement the FBW policy by July 2003. This was over five years ago and yet in some municipalities poor people still cannot access even the minimal FBW amount. While national policy is in place, there is as yet no clear enforcement of the policy or national assistance to implement at the local level.

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It is important to note that the failure to finalise a FBSan policy impacts water usage in households with water-borne sanitation. Such households are forced to utilise the majority of their FBW allocation for sanitation, leaving insufficient water for drinking, bathing, washing and food preparation. In light of this, there should at least be a FBSan policy for people who have water-borne sanitation. In our research, we found that at present it is only the metropolitan municipalities who are providing this, with Ekurhuleni providing 6kl FBSan to all residents, and Nelson Mandela Bay providing 11kl, Stellenbosch providing 6kl and Cape Town providing 4.2kl of FBSan per month to registered indigents. EThekwini provides free sewerage to those with property value less than R36,000, and has a system of rising block rebates which are granted to properties valued between R36,000 and R100,000.

5.2.4. Conclusion and recommendations on FBS

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therefore that many residents of a yard are excluded in the determination of the 25 litre per person per day or 6kl per household per month. They have no access to water at all.”66 There are clearly problems with the ‘per household per month’ allocation of FBW, which is wholly inappropriate, especially for large, urban and for multi-dwelling households.

There is also a need for DWAF to oversee and, if necessary, assist municipalities to move away from the very minimal amounts of FBW, towards a more internationally recognised standard. International experts, Judge Tsoka in the Mazibuko judgment, as well as DWAF itself, have all confirmed that 50 litres per person per day is the minimum amount of water needed to sustain a healthy and dignified life, and all efforts should be made to ensure that every person in the country has access to this amount, and the

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progressive realisation of access to more water in the case of poor households, particularly if households have water-borne sanitation (in which case the 50 lcd is not sufficient). In order to ensure that household allocation of water corresponds with household size, a housing size census should be undertaken every couple of years. Furthermore, there should be nonburdensome special representation mechanisms in place, which are advertised widely, for input in the interim period as well as for vulnerable groups like people living with HIV/AIDS. Finally, access to FBS should not be linked to compulsory installation of water restriction devices.

5.3. Indigent Policy as the FBS Targeting Mechanism In almost all the municipalities interviewed, FBW and FBSan are administered through an indigent policy. Of the fifteen municipalities interviewed, twelve said they had indigent policies – Dr J.S. Moroka said it had a policy but it had not been implemented, Nelson Mandela Bay had the equivalent which it called its Assistance to the Poor Policy and eThekwini was in the process of finalising its policy but had a social package which provided FBS to poor households. Cape Winelands did not have an indigent policy. There are a number of problems identified with this manner of targeting and allocating FBS to people. These issues are highlighted in this fault line and include: problems with defining the poor and the narrow

definition of ‘indigent’; the ineffectiveness of such targeting to reach

those in need, as evidenced by the chronic underrepresentation of those who actually qualify (i.e. the low number of formally qualifying poor people who are successfully registered and receive benefits); and the onerous administrative process to apply as an

indigent, and the adverse consequences of being on the indigent register.

5.3.1. Problems with defining the poor and the narrow definition of indigent Through our research we discovered that, across the municipalities, quite different ‘objective’ criteria are used to define the poor for the purposes of compiling an indigent register, which is the main mechanism through which FBSs are allocated. This is problematic as in some municipalities it is evident that there are relatively poor people who do not qualify but who would benefit greatly from FBS. Nelson Mandela Bay officials stated that their definition of who the poor comprise is limited and the reality is that those who suffer the most are those just outside of the definition, but who still cannot afford the services. Indeed, using an indigent register to allocate FBS leaves a potentially very large ‘black hole’ comprising those who are poor but do not qualify as indigents or those who for whatever reason do not register for indigent status. The DPLG itself has acknowledged that indigent thresholds differ from municipality to municipality and that this creates much confusion.67 The municipalities interviewed use varied methods to identify the poor or those qualifying for indigent status. Moses Kotane, Madibeng, Lepelle-Nkumpi and Amathole use income equal or less than R1,100/ month; Dr J.S. Moroka uses income equal or less than R800/month; Albert Luthuli (R1,880/month), Nelson Mandela (R1,770/month) and Cape Town (R1,700/month) use income equal or less than two state pensions per month; Msunduzi uses income equal or less than R2,036/month as well as property and land value; Stellenbosch uses income equal or less than R2,100/month; Cape Winelands uses income equal or less than R1 600/month; Witzenberg defines poor as households earning less than four 67

DPLG, “Towards The Successful Implementation Of The Free Basic Services Communication Strategy.” Workshop Report (Pretoria, 18 July 2007), p. 5: http:// www.participation.org.za/docs/tsi.doc.

R2,036 per month) are charged R20.94 for 12kl per household per month, while normal residential users are charged R108.48.68 The implication of this is that in a community one household could be registered as indigent while another which earns approximately the same income per month (but has not qualified as indigent) will pay about R88.00 more per month to consume the same amount of water. There is almost a perverse incentive to remain below a certain income to qualify for FBS, and the heavy penalties facing those who perhaps begin to earn more per month for whatever reason and do not declare this, are counterproductive and pernicious.

times the old age and disability grants and indigent as households earning less than twice the old age and disability grant; Nelson Mandela Bay uses property value less than certain amounts (these differ per area); Cape Town uses property value less than R199,000; and eThekwini use property value less than R100,000. The wide spread of income thresholds for indigency can be seen in figure 1 below. None of the indigent policies mentioned a contingency policy for those who are just outside of the classification of indigent for whatever reason, but who still require the benefits thereof. In Msunduzi Municipality, applied indigents (those earning total income less than

Fig. 1. Indigency thresholds across municipalities

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2500

1500 1000

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Series 1

500

Stellenbosch

Msunduzi

Witzenberg

Albert Luthuli

Nelson Mandela

Cape Town

Cape Winelands

Amathole

Lepelle-Nkumpi

Madibeng

Moses Kotane

Vhembe

0 Dr J.S. Moroka

Rand

2000

See Appendix 7.2 for comparisons between what indigents and non-indigents pay for 12/kl/month in each municipality.

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5.3.2. Ineffectiveness of using indigent register as means to reach those in need A clear, and concerning, research finding is that, in most municipalities, the number of registered indigents is admitted to be grossly under-representative of those who actually qualify and would greatly benefit from this free allocation. The DPLG recently announced, as one of its achievements, that 220 municipalities in South Africa currently have indigent registers. Even if this were true, which we find unlikely, it does not capture the reality that most of these registers exist only theory or are grossly under-representative, and that there are myriad problems associated with the indigent system of FBS allocation.69 Although the City of Johannesburg was not part of our survey, as one of the most capacitated and wellresourced municipalities in the country, its indigent register experience is a useful indicator. Johannesburg’s indigent register currently reflects 108,000 registered households. Yet, according to household data from Stats SA, as well as information from the City’s 2005 Human Development Strategy (which estimated that half of the City’s households have a monthly income of between R0 and R1,600), there are an estimated 500,000 households that formally qualify as indigent. This means that, in spite of a decade of concerted efforts by the City to register indigents (the City of Johannesburg has had an indigent register since 1997), the register represents only about a fifth of qualifying households. This, in itself, suggests that the register is a wholly inappropriate means of alleviating poverty, particularly where this is to be the City’s only mechanism. From our research across the 15 municipalities, it is clear that registration drives have generally been unsuccessful. The City of Tshwane Metropolitan Municipality, for example, has recently embarked on a major drive to update its register of indigent 69

DPLG, “Presentation to the Portfolio Committee: Free Basic Services and Infrastructure Branch” by Mr Yusuf Patel, Deputy Director-General (6 November 2007): http://www.participation.org.za/docs/fb.ppt.

households. Its goal is to get 90,000 indigent households registered, no mean feat considering since 1997 the council has only registered about 50,000 indigent households.70 The ability of under-resourced and rural municipalities to achieve this kind of indigent registering drive is obviously severely compromised and means that thousands of deserving people simply do not have access.71 Madibeng, Witzenberg, Nelson Mandela Bay, Msunduzi and Moses Kotane all indicated that the number of households registered is not an accurate reflection of the actual number that qualify for indigent status (the various criteria for qualification are discussed below), and the rest did not provide information. Moses Kotane only has 518 registered indigent households out of a total of 63,000 households, 90 percent of which are rural-based. Msunduzi only has 27,500 people registered as indigent and stated that this is only about 20 percent of those who qualify. Madibeng has 6,689 households registered as indigent, out of a total of approximately 100,000 households, and it states this number is highly underrepresentative because there is no reliable data for rural areas. In Madibeng, roughly 70 percent of households earn less than R1,600 a month, with approximately 23,000 of this number receiving no monthly income. This means that 70,000 households are poor, however only about 9 percent of these households are registered as indigent! 72 Dr J.S. Moroka stated that approximately 67 percent of total households Mbanjwa, X., “Drive to register 90 000 indigent families.” IOL (17 July 2008):http://www.iol. co.za/index.php?set_id=1&click_id=124&art_ id=vn20080717061737707C511733. Accessed 15 October 2008. 71 CALS, “CALS comment on City of Johannesburg proposed tariffs, FBW and FBE.” (25 April 2008), p. 2: http://web.wits.ac.za/Academic/Centres/CALS/ BasicServices/Advocacy.htm. 72 The Gaffney Group, Gaffney’s Local Government in South Africa 2007-2008 Official Yearbook. (Johannesburg, April 2007), pp. 929-930. 70

5.3.3. Onerous administrative process to apply as an indigent, and adverse consequences of being on the register The application process for indigent status and the requirements for indigent qualification are generally very onerous and exclusionary. In most municipalities, in order to qualify, you must:

most poor tenants and certainly excludes informal occupiers who also have housing rights and the right of access to sufficient water); have a total household monthly income less

than a certain amount (this differs widely across municipalities, generally in the range of between R800 and R2 100 per month); have a South African identity document (ID)

(this excludes many undocumented poor and vulnerable people). Most municipalities require extensive documentation and ‘proof of poverty’ in order to qualify for indigent status. For example, in Moses Kotane Municipality occupiers must have a South African ID or application for a new ID and provide their latest municipal account; have an application form indicating the names and identity numbers of all occupants/residents over the age of 18 years who reside at the property; and provide proof of income, a letter from employer(s) or proof of pension or disability/maintenance grant. For example, according to Stellenbosch Municipality, the maximum income level to qualify for indigency status is equal or less than two times the state grant plus 20 percent and rounded up to the nearest hundred rand. Proof must be produced in the form of pay slips, unemployment certificates, income certificates or other acceptable proof of income. Should proof of income not be available, income may be declared by means of a sworn statement. Such applications will however only be considered after a full investigation by means of a socio-economic survey.

Fault Lines

Most of the interviewed municipalities complained that their main obstacle to better water services provision is a lack of human capacity and financial resources (this is covered in part 5.6). In this context it is important to note that, if indigent registers were fully accurate (incorporating everyone who qualifies), this would greatly increase the administrative and financial demands on municipalities that are already unable to cope. According to Dr J.S. Moroka Municipality, income from the sale of water is severely restricted as the vast majority of households are considered to be indigent. It is not far-fetched to assume that the large number of qualifying households, the cost (financial and staffing capacity) to administer the register of indigent households, and the loss of revenue from billing, combine to act as a deterrent for municipalities to maintain a representative register of qualified indigents. In sum, the disincentives of increased costs and decreased internal revenue result in underrepresentative indigent registers.

be a municipal account-holder (this excludes

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(35,900) can be considered indigent; however there is no indigent register. In Nelson Mandela Bay, there are 93,739 households (34 percent of total households) on its version of the indigent register, which it calls its Assistance to the Poor Policy; however, as has been stated above, according to the municipality this is not an accurate figure because the definition of poor is limited and those who suffer the most are those who fall just outside the definition but who still cannot afford the services. No municipality indicated that the number of registered indigents is representative of the number of poor people who formally qualify.

Often, occupiers must agree in writing that the supply of water to the premises may be restricted by a flow restrictor. The verification form of information supplied by applicants must be completed by an authorised official and the relevant ward councillor must be involved during the evaluation process and must verify the application together with the relevant officials. Applicants are required to sign and submit a sworn affidavit, to the effect that all information

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supplied is true and that all income from formal and/ or informal sources, is declared. Any person who supplies false information will be disqualified from further participation in the subsidy scheme. They will also be liable for the immediate repayment of all subsidies received and the institution of criminal proceedings, as the municipality deems fit. Lepelle-Nkumpi demands a social worker’s report and an affidavit at a police station and Albert Luthuli Municipality may send inspectors to visit indigent households to record any changes in conditions and can decide to discontinue indigent subsidy. In Nelson Mandela Bay, the applicant must notify the Council immediately if their financial position changes, because the municipality may visit the applicant to verify the information on the application when it is deemed necessary. Furthermore, any result of fraud or non-disclosure of facts will make the account holder liable to immediate payment and prosecution. This amounts to blatant stigmatisation and criminalisation of the poor, and is in contradiction to the spirit in which FBS are meant to be delivered to the poor. In most municipalities, indigency status is temporary (typically one or two years), and people have to go through the full registration application process every year or two years. As mentioned in part 5.2.3, in many municipalities, households have to agree to the installation of flow restrictors or PPMs in order to qualify (these mechanisms are examined in part 5.5.4 below). There are other problematic conditionalities attached to indigent registration. In Madibeng, following the installation of PPMs, water will not be sold to consumers unless their full arrears, a connection fee and deposit have been paid, and a service delivery agreement is entered into. Moses Kotane does make an exception for registered indigents, whose arrears are suspended and frozen (i.e. no interest is charged). However, once the person is no longer classified as indigent (this need not necessarily be as a consequence of the person being less poor – it could simply be as a result of the period of registration expiring and the person not re-registering) then the full amount must be paid and interest begins to accumulate again. In

some municipalities an ‘incentive’ is offered to register, in the form of arrears write-offs. However, typically, these arrears are not actually written off, but are rather kept in abeyance. Where households tamper with water restriction devices and/or default on their above FBS bills, the arrears are reinstated with interest. What emerges strongly from our research is that the indigent policy is an ineffective pro-poor targeting mechanism that detracts from more effective ways of providing FBS to those who would greatly benefit from them. Alternative, potentially more effective, and humane methods of allocating FBS, including universal or geographic targeting, should be explored.

5.3.4. Conclusion and recommendations on indigent policy as the FBS targeting mechanism The majority of municipalities in our survey provide FBS only to those households that are registered for their indigent policy. Using the indigent policy as the means of allocating FBS to poor households is deeply flawed from a social and developmental perspective. It stigmatises the poor, reducing them to second class citizens who do not fit into the contractual or ‘corporate’ mode of citizenship and service delivery. Moreover, this kind of approach generally fails to achieve the desired poverty-alleviation ends – in other words it is ineffective at matching the ‘good’ – water services – with the people who need it – the poor. This for several related reasons. First, the most vulnerable societal groupings (women, child-headed households, and the unemployed), frequently are not aware of the indigent policy or register and/or do not register for fear of attracting adverse official attention. Second, the process for qualifying differs vastly across municipalities (suggesting no intrinsic value or objective) but is typically very onerous, requiring formal proof of poverty and regular re-application to remain on the register. As a result, as highlighted in our research, indigent registers are vastly under-

representative of the formally qualifying poor in each municipality, indication itself, that this is not an effective means of allocating such essential benefits.

Targeting schemes that are based on levels of

household income or expenditure are costly, requiring administratively labour-intensive surveys. Targeting is especially difficult where See, for example, Standing, G., “Conditional Cash Transfers: Why Targeting and Conditionalities Could Fail”, International Poverty Centre, One Pager no. 47 (December 2007): http://www.undp-povertycentre. org/pub/IPCOnePager47.pdf. 74 COHRE, SDC and UN-HABITAT, “Manual on the Right to Water and Sanitation.” (2007), p. 135: http:// www.cohre.org/manualrtws. 73

social security systems can exclude significant numbers of the poorest residents, particularly those living in rural areas, where it may be difficult to keep people informed of their entitlements; In rental housing, landlords may capture the

benefit of a subsidy, rather than the intended beneficiary. Transparent and clearly advertised subsidies may help to prevent landlords from including the benefit of the subsidy in rental levels. However, where the supply of low-cost accommodation is scarce, rent restrictions may be required.75 One possible method of providing FBS to those in need, which some municipalities are considering, is that of geographic targeting. Geographic targeting entails identifying poor areas for the allocation of FBS. It requires municipalities to seek out those who do not qualify, as opposed to placing the onus and burden on those who do qualify to register with the municipality. In South Africa, this method is quite attractive as apartheid geography segregating racial groups is still largely present, with poor (mainly black) areas clearly delineated from rich (mainly white) areas. A greater allocation of FBW could thus be automatically allocated to known areas of poverty such as Soweto, as well as certain buildings in the inner city. In order to avoid rich people in Soweto from benefitting unfairly, the City could focus its efforts at weeding out undeserving recipients. This is a much more equitable approach than having the default as no benefit, and placing the onus squarely on poor households to register. Moreover, although, inevitably, a fraction of undeserving households will continue to benefit, this 75

Fault Lines

COHRE, SDC and UN-HABITAT’s Manual on the Right to Water and Sanitation notes that it may be useful to utilise a mixture of mechanisms to “evaluate the economic capacity of users,” including: targeting subsidies based on household income, form of access, property value or geographical location. The manual describes how a comparison of subsidy schemes in Chile (based on household income) and in Colombia (based on geographical location), suggests that it may be beneficial to provide subsidies automatically in low-income areas, but to permit people outside such areas to apply for subsidies on the basis of their low income.74 Targeted subsidies could then also be provided to particular forms of access to water and sanitation, such as small-scale facilities, conditional upon a regulated (and widely advertised) price being provided to the users of such facilities. Some of the disadvantages identified in relation to income targeting include:

Targeting is often imprecise. Even sophisticated

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There is much international evidence that targeted approaches to poverty alleviation, especially those that require registration for benefits, are inappropriate and do not work. Universal approaches are far more effective in that they neither stigmatise nor require administratively onerous processes such as meanstesting/identification and monitoring.73

there is a large informal economy (however, it is possible to avoid this disadvantage by providing a subsidy to a low-income area or to forms of access that are more likely to be used by the poor, such as kiosks, stand-pipes and public toilets);

Ibid., p. 136.

Water Services Fault Lines

situation is far preferable to a situation in which vast numbers of deserving households do not benefit at all. However, geographic targeting is less workable in municipalities with overwhelmingly poor populations. Moreover, the COHRE, SDC and UN-HABITAT report mentions that subsidies based on geographical location, while easier and cheaper to administer, have the disadvantage of not always being able to differentiate between the poor, who may be able to pay a small amount, and the very poor, who cannot afford to pay more than a nominal sum or anything at all.76 The most ideal method of allocating FBS, and one that makes more sense in overwhelmingly poor municipalities, as well as generally, is that of universal allocation. Regardless of type of municipality, universal allocation is not only the most effective way of ensuring that all deserving people receive the critical benefit of FBS, but it has the additional benefit of not requiring any administration to identify qualifying households from non-qualifying households. Universal allocation has a further benefit of countermanding the otherwise negative stratification or segmentation of water services, referring to the situation in which rich and poor are offered different services, with the rich invariably receiving better service, albeit at a price. With universal allocation, FBS becomes something that everyone – whether rich or poor – has an interest in maintaining. In South African municipalities, universal allocation could be effected through an appropriate amount of water calculated per person per day (starting at 50 litres per person per day but incorporating an additional amount for sanitation where there is waterborne sanitation) worked out across a suburb’s average number of persons per household. In municipalities with richer water users, universal targeting could be afforded through steep tariffs at the luxury end of the water services spectrum, ensuring that those who use excessive amounts of water and can afford to pay, cross-

Ibid.

subsidise the poor.77 In uniformly poor municipalities cross-subsidies would have to come from national government.

5.4. Tariffs As outlined in part 4.7 on tariff policy, local authorities have the mandate to determine their own tariff structures and pricing in line with national principles and requirements for water services tariffs, including the Norms and Standards. A major problem experienced by poor people is the unaffordability of services and the non-progressive tariff structures that are implemented within municipalities.78 This fault line covers the following issues: the unaffordability of water services for the poor

and the absence of affordability and elasticity of demand studies being done to ascertain fair, equitable and effective revenue from tariffs; inappropriate tariff structures; and, of specific

concern, the sharp tariff increase following the FBW block.

Tariffs are an important source of revenue for municipalities and the priority of cost-recovery drives the development of tariff structures. In metropolitan municipalities, income from water services (water and sanitation) generally accounts for between 10 and 16 percent of total municipal income (capital and O/M), for example, in Ekurhuleni it is 16 percent and in eThekwini it is 11 percent. In rural municipalities it is much less; in Albert Luthuli Municipality it is 4 percent and in Dr J.S. Moroka Municipality it is about 2 percent.79 Cost-recovery imperatives have inclined municipalities to focus on financial viability (covering initial capital costs and O/M) at the expense of its social and environmental duties towards citizens. See part 5.4 below, for more information on progressive tariff structures. 78 This fault line deals with problems around tariffs and affordability for metered connections specifically. 79 These statistics are for the municipalities’ actual budgets for 2005-2006 and are based on information supplied by the National Treasury. See Gaffney’s Local Government in South Africa 2007-2008 Official Yearbook, at note 72, pp. 1572, 1575, 1591-1592. 77

Benjamin, C.,“Country Warned of Rocketing Water Tariff Increases.” Business Day (2 October 2008): http://allafrica.com/stories/200810020259.html. Accessed 15 October 2008.

It remains to be seen how DWAF hopes to achieve ring-fenced WSAs across all municipalities. More importantly, before more municipalities embark on ring-fencing more research is necessary to ascertain the extent to which the assumed benefits –mainly financial accountability and transparency - of this proposed financial ring-fencing will outweigh the potentially negative consequence to broader social and developmental goals of the likely increased fragmentation of critical functions at the municipal level. The benefit versus harm of ring-fenced water services may vary from municipality to municipality, so locally-specific studies are essential.

Fault Lines

The national framework, in terms of which municipalities are forced to grapple with all the financial and technical responsibility of water services, coupled with neoliberal cost-recovery imperatives, has resulted in a mindset in which water services are viewed as a fragmented function, isolated from health care, education and other critical developmental and rights-based aspects, thus compromising equitable and effective service delivery within municipalities. As McDonald writes, “there is a fundamental contradiction here between the drive to ringfence a service so it can better isolate its own micro costs and the need to understand the broader macro-economic costs and benefits of a particular service (e.g. public

health).” Here, McDonald is referring to the outbreak of a massive cholera epidemic in rural Kwazulu Natal in 2000, which was precipitated (or at least exacerbated) by cost-recovery efforts introduced in the area.81 In this regard it is worth noting that DWAF has emphasised in its National Water Services Regulation Strategy, the need for municipalities to financially ring-fence82 water services in order to promote greater efficiency. Undoubtedly, ring-fencing of water services would facilitate easier determination of the cost of water services provision – something that is currently not very effectively done. However, so far, only eight out of 284 municipalities exhibit financially ring-fenced water services.83

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Indeed, it is clear from many of the local officials interviewed that people are viewed as consumers and not citizens or users, and within this paradigm, water is viewed as an economic good and source of revenue, rather than a social good necessary for human life, health and dignity. The recently published 2007-2008 International Water Report and Cost Survey has shown that South Africans are paying 70 percent more for water now than five years ago, with the country having the third highest increase worldwide. Experts have predicted that tariffs will rise even higher over the next few years as a result of aging infrastructure, water shortages from 2013, supplying new areas with water, and the expected removal of the cross-subsidisation of water prices with electricity revenue once regional electricity distributors (REDs) are introduced. According to the South African general manager of the American company who undertook the survey, “with the introduction of REDs, the cross-subsidisation of water prices with electricity revenue will eventually be removed, forcing councils to charge cost-reflective prices for water.” This will inevitably mean higher water bills for South Africans in the future.80

McDonald, D., “The Theory and Practice of Cost Recovery in South Africa”, at note 3, p. 30. 82 Ring-fencing typically means institutional separation of water services functions and finance from other municipal finance, typically through corporatising the water services provider. 83 The City of Johannesburg, Nelson Mandela Metropolitan Municipality, iLembe District Municipality, UThukela District Municipality, Vhembe District Municipality, Maluti-a-Phofung Municipality, Mangaung Municipality and Mogalakwena Municipality have financially ring-fenced water services, while the City of Cape Town is partially ring-fenced. 81

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In the meantime, according to current policy, DWAF has clearly stipulated in section 6(2) of the Norms and Standards that tariffs should be set as a volume based charge that provides for a rising block structure that includes three or more tariff blocks, with the tariff increasing for higher consumption blocks.84 Section 6(2)(c) of the Norms and Standards states that the tariff structure must include a “first tariff block or lowest tariff block with a maximum consumption volume of six kilolitres and which is set at the lowest amount, including a zero amount, required to ensure the viability and sustainability of water supply services”. Consumption between 0 and 6kl per household per month should be provided for free if a FBW policy is being correctly implemented. The second block in a three-block tariff structure is for “normal consumption” meaning that the upper consumption limit of this block should be set such that a household that uses water sparingly should be able to be accommodated within this block. The tariff charged for consumption in this block should ideally reflect the actual or average cost of water. The third or highest block is for ‘luxury consumption’, and “a household that uses water for luxury purposes, such as for filling a swimming pool or a household that does not use water sparingly should be required to pay a higher than average price for water that reflects the economic cost of this scarce resource”.85 It could also be argued that the careless use of water is a major cause of having to construct new infrastructure earlier than what would have been required if water was conserved. Section 6(2)(d) of the Norms and Standards states that a tariff structure must include a “tariff for the last block or highest consumption block set at an amount that would discourage high water use and that reflects the incremental cost that would be incurred to increase the capacity of the water supply infrastructure to meet an incremental growth in demand”.

84 85

Section 6(2)(a) of the Norms and Standards. DWAF, “Guidelines for Compulsory National Standards and Norms and Standards for Water Services Tariffs” (August 2002), p. 56: http:// www.dwaf.gov.za/Documents/FBW/regulations/ FBWRegulationsAug2002.pdf.

There are several ways in which municipalities can structure their pricing for water users, and this obviously depends on whether water connections are metered or non-metered. Flat rates for metered connections are clearly not acceptable, because they are not a progressive pricing strategy. Often, however, tariff structures provide the compulsory 6kl of FBW followed by a steep, concave curve, which makes the next consumption block unaffordable to many households, commonly leading to water disconnections for non-payment of bills and people turning elsewhere to gain access to water.86 Rising block and exponential rising tariff structures, which take into account how much water is consumed in how much is charged, can obviously only be implemented when there is a metered connection. For non-metered connections the norm is for there to be a flat rate charged (also known as ‘deemed consumption’), generally different for indigent and non-indigent (generally referred to as ‘residential’) households. Our research reveals that flat rates for non-metered water connections are charged in Dr J.S. Moroka, Lepelle-Nkumpi, Ekurhuleni, Nelson Mandela Bay and Amathole District Municipality, as well as for sanitation in Albert Luthuli, Dr J.S. Moroka, Blouberg and Msunduzi (see Appendices).87 Regarding sanitation provision, Appendix 7.3 provides a rather crude comparison of sanitation charges across the municipalities. What can be gleaned from this is that municipalities, in contrast to the more uniform consumption-based block tariff approach to water provision, approach sanitation in rather an ad hoc manner. Pricing strategies for sanitation provision differ considerably, with municipalities using a flat rate, a tariff structure based on plot size, a consumptionbased tariff or a hydraulic-based system. Bond, P. and Dugard, J., “Water, Human Rights and Social Conflict: South African Experiences.” Law, Social Justice & Global Development Journal, 1 (2008), p. 9: http://www.go.warwick.ac.uk/elj/lgd/2008_1/ bond_dugard. 87 While we have attempted to locate and verify the most recent water services charges for each municipality, we acknowledge that some prices have subsequently changed, or have been based on incorrect information supplied to us. 86

From a pro-poor and environmental perspective, a worst case scenario would be where everyone is charged a flat rate for water, regardless of what level of service they are at, how much water they actually consume or how much they can or cannot afford to pay i.e. whether they are registered as indigent or not. This is clearly not in line with what is stipulated in the National Water Act, the Water Services Act, as well as the Strategic Framework for Water Services. A best case scenario would be a tariff structure that takes into account not only whether a water connection is metered or not and how much water is actually consumed, but is also stepped in such a way as to ensure affordability for the poor for water consumed over and above the FBW amount, as well as punishing rich, high-end consumers of excessive water amounts i.e. â&#x20AC;&#x2DC;hedonistic consumption.â&#x20AC;&#x2122; In essence, what is ideal is a progressive, rising block tariff structure that is pro-poor and takes into account large household sizes

of those in poorer socio-economic brackets, but also promotes water conservation and cross-subsidisation at the higher end, penalising those at the luxury end of the water consumption spectrum.

Fig. 2. Convex graph

Fig. 3. Concave graph

Price R

Consumption kl

Fault Lines FIVE

Price R

There are various ways that municipalities can structure their pricing for rising block tariffs structures. Plotting the block tariffs on a graph, with consumption units on the horizontal x-axis and price on the vertical y-axis, the shape of the graph, whether convex or concave, indicates the relative price increases at various levels of water consumption. A concave graph (see figure 3 below) sees water tariff prices rise steeply per unit of consumption at relatively low levels of consumption, with lower relative increases for higher levels of consumption. In contrast, a convex graph (see figure 2 below) has relatively gradual price increases per unit of consumption at lower consumption levels, with tariff increases becoming steeper and steeper at higher consumption levels.

Consumption kl

Fig. 4. Graph that is convex at low prices/consumption and concave at high prices/consumption

Water Services Fault Lines

Hypothetically, it is possible to develop a different tariff structure for poor suburbs and areas, raising the amount of free water to perhaps 12kl per month, which would result in a greater degree of convexity in the shape of the tariff structure up until the point where consumers begin to pay for water (the point of inflection), after which time the graph would become concave (see figure 4 above). The point of inflection, or point at which consumers begin to pay for water, could be changed in order to satisfy any number of criteria including cost-recovery, equity and water conservation. It is probable that in very large poor households 12kl may not be enough to provide for 50 litres per person per day; however the amount of FBW provided, and hence the location of the point of inflection on the graph of the water tariff, could be changed to meet the needs of specifically poor areas. The municipality could still apply its original tariff to richer suburbs, or even raise the tariffs for these areas in order to recoup the increased revenue losses it would experience in poorer areas. There are numerous precedents for applying differential tariff structures to different socio-economic areas within a municipality.88 While it is clear that tariffs for metered connections should be applied in proportion to water use and should take into account affordability for the poor, the reality is that in most rural municipalities and informal settlements with many indigent households, the level of service is basic, comprising a communal tap charged at flat rate or provided free with a flow restrictor attached. The problem in these cases may not necessarily be with householdsâ&#x20AC;&#x2122; inability to pay i.e. affordability, but rather with the inability to access the progressive realisation of a higher level of service because of financial and other constraints faced by municipalities (as outlined in part 5.1). It is to be 88

This paragraph and the description of the concave and convex tariff structures above are taken from a supporting affidavit by economist Paul Berkowitz in the Mazibuko case, which dealt with pro-poor tariff structures and pricing strategies for the City of Johannesburg: http://web.wits.ac.za/Academic/ Centres/CALS/BasicServices/PhiriWaterRights. htm.

expected that discrepancies in tariff structures across the municipalities would exist, due to varying resource bases, differences in the types of settlements, the levels of service provided and the scarcity of water within the municipality. However, what is problematic is the apparent disregard for affordability criteria when setting water and sanitation tariffs. There is no DWAF national regulatory website (as is the case with water quality) and no DWAF consultants (that we are aware) working with municipalities on issues around tariff structuring and affordability.

5.4.1. (Un)affordability of water services for the poor The push towards full cost-recovery within municipalities is evident, especially in the poorer and less-capacitated municipalities, and the need to increase internal revenue was strongly articulated in the interviews, despite the fact that many poor households simply cannot afford to pay for water and sanitation services. While we did not attempt any affordability studies, in the course of our research a concern over affordability for poor water users in tariff setting policies was only expressed by two municipalities, namely eThekwini and Witzenberg. We get the sense that most municipalities do not have the capacity to undertake the kinds of affordability studies that would be necessary for appropriate tariff policy setting. Only two municipalities in our research attempted to answer the question about what percentage of household income is spent on water and sanitation within their jurisdiction. Amathole District Municipality stated that people are generally prepared to spend between 1 percent and 5 percent of their disposable income on payment for services; however the level of service and context play a major role. According to Amathole, people may be unwilling to pay for what is perceived to be a low level of service, however they may be prepared to pay up to 10 percent of their disposable income where access to alternative sources of water are not available. The district municipality stated that the bulk of its population is unable to afford even the basic level of service without some form of subsidy; therefore it relies very heavily

Chile’s subsidy system for water, based on the assessed income of the household, has been seen as a model for targeted subsidies towards low income groups. As a crude approximation of ability to pay, the Chilean policy aims to ensure that no household pays more than five percent of its monthly income in water and sewerage charges. Using household survey information for each region and published tariffs, the ministry responsible determines how many households need a subsidy, and how large benefits need to be to meet the benchmark for each region. This approach can only be successful where all households have a connection to water and sanitation services, which is the case in Chile.

5.4.2. Inappropriate tariff structures Most of the municipalities we interviewed stated that they utilise cross-subsidisation in their tariff structure, in that higher end users subsidise lower end users. Yet, there are concerning trends. For example, Albert Luthuli Municipality has the same per kl block tariff structure for residential households as it does for business, industry and government departments. 89

COHRE, SDC and UN-HABITAT, “Manual on the Right to Water and Sanitation”, at note 74, p. 139.

The logic often used to defend a position of little differentiation between water users is that charging higher tariffs for consumption for commercial and industrial purposes will increase costs and force them out to areas with cheaper costs. In Ekurhuleni, tariffs are set to promote the development of “competitive business” and the commercial tariff structure is therefore not loaded with heavy cross-subsidy requirements. In the absence of enforceable national guidelines and regulation regarding relative pricing between domestic and commercial/industrial/agricultural/institutional users, local government is left to create its own policies and tariffs, which might contradict national priorities, strategies and developmental goals.

Fault Lines

Box 1: Chile’s efforts to ensure affordability of water services

This tariff policy runs counter to the cost-recovery philosophy of “the more you use the more you pay,” and unfairly discriminates against residential consumers. This practice also violates the Norms and Standards on the separation of different types of consumers (see part 4.7 above), which clearly states that when setting tariffs for water services a water services institution must differentiate between a) water supplied for household use i.e. domestic consumption; b) water supplied for industrial use i.e. to a factory and c) water supplied for other use i.e. commercial (e.g. offices) or institutional use (e.g. schools or hospitals). The same differentiation applies for setting tariffs for sanitation services.90

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on its ES allocation. Witzenberg stated that their WSDP does make consideration for the affordability of tariffs and stated that that the municipal bill for all services should not exceed 10 percent of the monthly income for poor households. These affordability calculations are based on the middle income group (R1,600 – R3,200 income per month), as services for lower income groups are subsidised. The recently published COHRE and UN-HABITAT Manual on the Right to Water and Sanitation provides an interesting case study on Chile regarding the unintended effect of indigent targeting.89

5.4.3. Sharp tariff increase following the FBW block Municipalities state that higher tariffs charged for increased water consumption are used as a deterrent to inefficient water use and as a water conservation mechanism. However it is evident from the research that for poor or indigent households there is sometimes a high penalty applied for those who consume more than the free basic amount. For instance, there are some municipalities including Msunduzi, Dr J.S. Section 4(1) of the Norms and Standards.

Water Services Fault Lines

Moroka and Ekurhuleni, where indigent consumers are clearly penalised within the tariff structure for using more than the free basic amount, normally set at 6kl per household per month. An extreme and rather shocking example of this was found in Msunduzi Municipality where automatic indigents receive the first 6kl free and pay R9.04/kl thereafter, a substantially higher tariff charge that normal residential users pay (see figure 5).91 In Dr J.S. Moroka Municipality indigents receive the first 6kl free however 7 - 10kl is R1.60/kl which is more expensive than the R1.40/

kl that normal consumers pay up to 10kl. Anything consumed above 10kl is charged at normal residential rates. This penalises extra consumption of water beyond the free basic amount only for indigents and not for other consumers. In Ekurhuleni, if registered indigents use more than the 9kl/month then they are charged as per the normal domestic tariffs. According to the municipality, this was done in order to encourage indigent households to conserve water as well as not to consume above 9kl, in line with the income of the household.

Fig. 5. Block tariff structure across municipalities

18 16 Moses Kotane Madibeng Albert Luthuli Dr J.S. Moroka Dr J.S. Moroka - indigent Ekurhuleni Nelson Mandela Stellenbosch Witzenberg Cape Town 1 Cape Town 2 - domestic clusters Ethekwini 1 - full pressure Ethekwini 2 - semi pressure Msunduzi Blouberg

price (rands) per kilolitre

14 12 10 8 6 4 2 0 0

40 50 60 70 kilolitres consumed

In Msunduzi Municipality there are three classifications of indigents: automatic indigents (house and land valued under R30,000), applied indigents (house and land valued between R30,000 and R40,000) and applied indigents (house and land valued over R40,001). There is no application process for automatic indigents and no conditions attached to their status, however it is important to note that most new RDP housing developments install water restricting devices automatically. Applied indigents in the municipality receive the first 6kl free and pay R3.49/kl from 7â&#x20AC;&#x201C;12kl, and R9.04/kl for consumption thereafter.

100

This is based on Dr Gleick’s analysis of the minimum amount of basic water required to sustain a healthy and dignified life, as per an (average) household of eight people (see note 33).

The municipality with the most blocks in its tariff structure is Madibeng with 10 blocks in total, while Moses Kotane, eThekwini and Msunduzi all have only three blocks in their tariff structures. Msunduzi has the highest second block of the tariff structures with a charge of R9.04/kl for automatic indigents. This charge is more than the R7.06/kl block charged for water consumed between 42.1 and 100kl in Madibeng. Dr J.S. Moroka has the lowest second block charge at R1.60/kl. The graph in figure 6 below plots across the 15 municipalities (including local municipalities within Amathole District Municipality), the charge for indigents (per kilolitre) for the second block of the tariff structure. In terms of the cheapest and most expensive municipalities for indigents to consume 12kl per month, the City of Cape Town provides in effect 13kl free to indigents, while in comparison it costs R54.24 per month for automatic indigents to consume the same amount in Msunduzi. For ‘normal’ residential users, it costs R113.43/month to consume 12kl with a full pressure connection in eThekwini, while in Cape Town it costs only R18.30/month. The graph in figure 7 below plots the price of 12kl for indigents across the municipalities.

Fault Lines

Appendix 7.2 lists each municipality and gives information on a) the number of blocks in the water tariff structure, b) the amount per kilolitre charged in the second block (the block above the free basic block for indigents), c) the price per month for indigents/ poor to consume 12kl,92 d) the price per month for normal residential users to consume 12kl, e) the percentage that indigents pay for 12kl/month of what normal residential users pay for the same amount and finally f) the amount of FBW provided by the municipality. A number of interesting observations can be made from comparing these different indicators. In all municipalities, apart from Cape Town and eThekwini, the largest rise in the tariff structure is in the block following the free basic amount. Therefore, those most affected or penalised are not actually the high-end water users, but those who for whatever

reason are not registered, as indigent but who are still poor.

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Plotting the tariffs for metered households reveals the variation in tariff structures across municipalities. Figure 5 shows the convexity/concavity of the tariff structures for 13 municipalities. Sharp rises in the second block are evident across several municipalities – Msunduzi, Cape Town, Albert Luthuli, and Ekurhuleni. With the exception of Moses Kotane, Cape Town and Ekurhuleni, the rates seem to taper off after about 50kl, suggesting rather concave tariffs instead of the more appropriate convex ones (where high consumption is charged heavily). Dr J.S. Moroka and Blouberg have nearly flat tariffs and Witzenberg’s per-kl rates fall between the second and third block. Similarly, Madibeng lowers the rates for consumption above 100kl from R7.06/kl to R4.77/kl (not shown in figure). When interpreting the figure, it is important to note that many indigent connections are not metered, receive a flat rate and are therefore excluded from the figure above.

Another interesting comparison is the percentage change between how much it costs indigents to use 12kl/month and how much non-indigent residential users pay for the same amount. This has been discussed previously in the fault lines that deal with FBS, and indigent policy as the FBS targeting mechanism, respectively. The graph in figure 8 represents the cross-subsidisation for 12kl within the municipalities, with the y axis indicating the ratios of the indigent to general charge for 12 kl of within the municipalities. What the above graphs show is that there is a wide variance in how tariff structures are constructed, and, how much is charged within municipalities for

City of Cape Town Dr J.S. Moroka - metered Dr J.S. Moroka - non-metered Blouberg Nelson Mandela Bay - metered Albert Luthuli Nxuba Ekurhuleni Great Kei Stellenbosch Witzenberg - controlled Mnquma Nkonkobe Witzenberg - uncontrolled Madibeng Amahlathi Mbhashe Ngqushwa eThekwini (semi) Moses Kotane eThekwini (full) Msunduzi (appl) Msunduzi (auto)

Charge for indigents for 12 kl (Rand)

Msunduzi (auto)

eThekwini (full)

Moses Kotane

Ekurhuleni

eThekwini(semi)

Ngqushwa

Nelson Mandela Bay

Amahlathi

Mbhashe

Madibeng

Witzenberg

Mnquma

Nkonkobe

Msunduzi (appl)

Stellenbosch

Great Kei

City of Cape Town

Albert Luthuli

Nxuba

Blouberg

Dr J.S. Moroka

Tariff (Rand)

Water Services Fault Lines

Fig. 6. Charge per kl for the second block for indigents

10 9 8 7 6 5 4 3 2 1 0

Municipality

Fig. 7. Price to consume 12 kl for indigents

120.00% 100.00% 80.00% 60.00% 40.00% 20.00%

5.4.4. Conclusion and recommendations on tariffs The setting of tariffs should be an exercise in striking an appropriate balance between providing affordable water and sanitation services, and ensuring the sustainability (in economic and environmental terms) of rendering such services. Every municipalityâ&#x20AC;&#x2122;s tariff structures should be based on and reflect this logic. However, such

logic was not evident to us and the glaring disparity across the current tariff landscape is cause for concern, suggesting a role for greater national standardisation, albeit ensuring local appropriateness. The first step would be for DWAF to assist municipalities to determine (a) the actual costs of providing water and sanitation services, (b) how much revenue they are receiving from these services, (c) how much poor households can afford to spend on water and sanitation services and (d) how many richer users exist and how much they can afford to pay to cross-subsidise poorer users (this involves studies of elasticity of demand of rich water users i.e. at what charge will high-end users start to decrease their water consumption). Such data is needed to develop and implement progressive and affordable tariff structures. Another recommendation is for DWAF to monitor water and sanitation tariffs in a similar manner to which it monitors water quality, with an obvious emphasis on accuracy, efficiency, enforcement and equity.

Fault Lines

the same amount of water consumed. What is also clear though from these graphs is that they fall on the classic bell curve, whereby most municipalities lie within an average and a few municipalities at the extremes (although the municipalities differ slightly for each extreme). The graphs show, in a broad-brush way (without looking at other factors like resources, capacity etc) that more ambitious pro-poor tariffs and charges are possible, while the tariffs of some municipalities are highly problematic.

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0.00%

City of Cape Town Witzenberg - uncontrolled Nelson Mandela Bay - metered Dr J.S. Moroka - metered eThekwini (full) Msunduzi(appl) Witzenberg - controlled Ekurhuleni Msunduzi (auto) Blouberg Great Kei Amahlathi Mnquma Ngqushwa Nxuba Nkonkobe Mbahashe Stellenboshch Dr J.S. Moroka-non-metered Albert Luthuli Madibeng eThekwini (semi) Moses Kotane

Ratio of indigent/general charge for 12kl

Fig. 8. Cross-subsidisation for 12 kl

Water Services Fault Lines

Another important investigation would be to inquire into the scope and nature of the price elasticity of demand for water services within municipalities. Indepth studies have been conducted in Hermanus around the use of progressive block tariffs in water conservation and water demand,93 and on the Cape Flats in the Western Cape, around water demand and water pricing for the urban poor.94 However, accurate data and recent in-depth studies of this nature are scarce. It is vital for municipalities to understand the shape of the demand curve in order to apply equitable tariffs. The standardisation of tariffs, in particular establishing parameters for the different block tariffs, is also an area that needs to be explored further.95

Greater Hermanus Municipality was one of the pilot sites for an integrated water conservation programme using block tariffs in 1996, called the Greater Hermanus Water Conservation Programme (GHWCP). However, according to Pape, progressive block tariffs in Hermanus were not an unqualified success, and although water consumption was reduced by a third while increasing revenue, the municipality is not typical with its massive influx of tourists in season, and the policy focussed on the former white suburbs while strict credit control measures were simultaneously being applied in the townships leading to water cut-offs. See Pape, J., “Looking for Alternatives to Cost Recovery” at note 3, p. 186. For an analysis of this programme see Deedat, H., Pape, J. and Qotole, M., “Block Tariffs or Blocked Access? The Greater Hermanus Water Conservation Programme.” Occasional Papers Series # 5 (October 2001): http://www.queensu.ca/msp/ pages/Project_Publications/Series/5.htm. 94 Jansen, A. and Schulz, C.E., “Water demand and the urban poor: A study on the conditions for water consumption on the Cape Flats.” Draft Paper, ESSA Conference (September 2005): http://www.essa.org. za/download/2005Conference/Jansen.pdf. 95 For example, Moses Kotane Municipality’s second block covers consumption from 6.1- 45kl, while Madibeng has 7 blocks till 45kl which offers a much more nuanced and pro-poor approach. 93

5.5. Credit Control Enforcement - Water Disconnections and Restriction Devices Across the municipalities we surveyed, cost-recovery and financial sustainability pressures dominate local officials’ attitudes and actions towards service delivery, especially in poorer and under-capacitated municipalities. Yet, while all municipalities are focused on credit control,96 our research identified different approaches to, and methods of, credit control enforcement. One municipality in our study, LepelleNkumpi, stands out for not engaging in credit control enforcement at all – instead municipal officials go door to door instructing users to pay their accounts, and they report a high level of compliance among households that can pay for services. This sensitive approach to non-payment in poor areas might not be replicable in larger municipalities, but our research suggests that alternative methodologies need to be explored. Across the other municipalities that utilise credit control enforcement, the following issues were identified in the course of the research: problems related to the institutional separation

of credit control enforcement from meter reading and service delivery within municipalities; arbitrary and unfair approaches to water services

credit control enforcement; water disconnection as a method of credit control

enforcement; and water restriction devices as a method of credit

control enforcement - PPMs and flow restrictors.

This fault line does not deal with debt recovery per se, but rather deals with municipalities’ focus on curtailing water revenue losses incurred by poor households through the imposition of water limitation/restriction devices and/or total disconnection of water supplies. This is the sense in which we use the term credit control in this report.

Similarly, there is often a further separation (both ideologically and institutionally) of credit control enforcement functions from meter-reading, which is often outsourced, and billing, which is often inaccurate. Because of the cost-recovery-related pressures on WSAs and WSPs, many municipalities focus more aggressively on payment at the expense of ensuring the accuracy of bills and meter-reading. In Msunduzi, the Department of Finance controls billing however there is a move to outsource the meter reading function. Msunduzi mentioned that one of the problems with the Department of Finance controlling the billing system is that they do not understand the

Another major problem appears to be the collection of bills in rural areas and the Department of Finance in Albert Luthuli Municipality stated that the scattered settlements made it difficult to implement a billing system with accurate meters and meter reading. Officials from Lepelle-Nkumpi stated that they have been collecting revenue by default (Capricorn District Municipality is supposed the collect revenue) primarily in order to fund O/M, and that they stated that they have had problems with human error in meter reading in the past. According to them, the technical services team was sent to Middleburg to study the electronic cost-recovery system there, but the study was cut short because of internal problems and now the Department of Finance has taken over and has shown a lack of interest in implementing electronic meter reading. The tension between the two departments within the municipality was palpable, as is the case in other municipalities that were interviewed.

Fault Lines

A recurring theme in our interviews was the division within the municipalities of the responsibilities for billing, metering, credit control and arrears payment, and the enforcement of credit control. Generally it is the Department of Finance or the Treasury within the municipality that deals with the revenue, billing and credit control aspects of water services, while the Department of Technical Infrastructure, Technical Services or Water and Sanitation actually carry out credit control enforcement (through water disconnections or the implementation of restricting devices on defaulting households). This departmental and inter-departmental fragmentation increases the difficulty of comprehensively and equitably dealing with problems when they arise. For example, if a silo-like Department of Finance views a particular household’s arrears in isolation from other information (e.g. the household’s socio-economic status and ability to pay), this increases the potential for undesirable outcomes e.g. low-income/vulnerable households having their water supply disconnected. In our survey, Witzenberg recognised this problem, mentioning the need for a more integrated approach between the technical and financial departments, as well as for better planning, as the population size within the municipality increases.

meters like the water and sanitation department, and human error in reading meters is common. Interestingly, the municipality stated that not all houses or stands are metered and there are efforts to install meters everywhere, not in order to move people to higher levels of service or to promote progressive and equitable access to water services, but to “increase billing and revenue.” This assertion clearly highlights the municipality’s preoccupation with cost-recovery.

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5.5.1. Institutional separation of credit control enforcement from other functions

Adding to this non-integration and non-integrity of information, in many municipalities, including Ekurhuleni, eThekwini and Madibeng, the meterreading function is outsourced. eThekwini stated that it has outsourced its meter-reading, providing the business to ten small companies, and has recently introduced a system of hand-held meter readers which not only contain a GPS device to locate the meter, but also a camera to capture the amount in the eventuality of future disputes. In Madibeng, the Department of Finance outsources meter reading to private companies, however this is problematic because meter reading plays a vital role in its internal revenue

Water Services Fault Lines A tale of six buildings

collection, and there is no monitoring system in place. This reactionary approach towards an important source of revenue threatens infrastructure and service provision, and is contradictory to cost-recovery strategies. Ekurhuleni not only outsources its meter readings, but also hires consultants to monitor the outsourced meter readers. Recognising the problems associated with the separation of meter reading from other water services functions, Ekurhuleni explained that, currently, its finance department controls revenue and billing. However this scenario is likely to change under a future institutional review as the water services department wants to establish a revenue unit within the Water Services Unit, which would perform and control meter reading, billing and credit control to ensure maximum integration of information and functions.

5.5.2. Arbitrary and unfair credit control enforcement There is no doubt that municipalities face genuine challenges in minimising financial losses incurred by unpaid for water services. Although we did not directly ask a question about uniformity of credit control enforcement, it became clear in the course of our research that some municipalities pursue arbitrary and unfair approaches to water services credit control – failing to target all debtors equally. In particular, we found that the selective non-enforcement of credit control measures against government institutions – which, in many municipalities, are amongst the worst debtors – is quite common. A recent report revealed that eThekwini Municipality is owed more than R400 million by government departments for municipal services, the major portion of a national government debt of almost R1 billion. The City of Cape Town is owed R234 million, Ekurhuleni is owed R163 million and Nelson Mandela Bay is owed R21.5 million by government departments. More research is necessary to determine the extent of such selective non-enforcement of credit control, but we predict that it is probably quite widespread. Indeed there has been public criticism of the failure of government departments to pay for municipal 52

services, which undermines the quality of service delivery to the public and the ability of municipalities to maintain infrastructure and conduct O/M.97 We are certainly not advocating that government departments necessarily be disconnected or have their water restricted (although this does and should occur when necessary). It is worrying that such a large percentage of internal revenue for municipalities is simply not being collected from those who arguably can afford to pay, while at the same time poor households are been disconnected and/or restricted because they are consuming more than a basic minimum amount. Another arbitrary and/or unfair credit control practice that we encountered is the consolidation of all municipal debt owed by a household. This occurs in eThekwini, which consolidates all debts owing in respect of electricity, water and rates into one account, which is meant to give the Council more leverage to pursue legal action against non-paying citizens. This is a highly problematic system as, although it ostensibly assists the municipality, it greatly affects poor household’s ability to enjoy sustainable access to adequate water services as their other debts immediately form part of what they owe for water and for which they are summarily punished.

5.5.3. Water disconnection According to our research, an inevitable consequence of the preoccupation with cost-recovery is the disconnection of water supplies to people who cannot afford to pay for water, regardless of their inability to do so. The cost-recovery approach results in municipalities (both rhetorically and through their actions) turning citizens into customers and, in some cases, into criminals. With a social and developmental 97

Wicks, J., “State still to pay Durban’s municipal bills.” The Mercury (11 August 2008): http://www. iol.co.za/index.php?set_id=1&click_id=124&art_ id=vn20080811054315913C817907. Accessed 15 October 2008.

The Water Services Act prohibits denying a person access to a basic amount of water because of an inability to pay, and this is why water restricting devices (outlined in part 5.5.4 below) are used more frequently than actual disconnections. Section 4(3) (c) of the Water Services Act states that procedures for the limitation or discontinuation of water services “must not result in a person being denied access to basic water services for non-payment, where that person proves, to the satisfaction of the relevant water services authority that he or she is unable to pay for basic services.” When interviewed about disconnections, almost every municipality told us that they were not allowed to disconnect poor people’s water supply. However, some municipalities admitted to disconnecting illegal water connections. In Moses Kotane Municipality, if a user does not pay there will be a disconnection if no attempt is made to

5.5.4. Water restriction devices - flow restrictors and PPMs While most municipalities stated that they do not effect water disconnections, most exert credit control through the imposition of water restriction devices such as flow restrictors and PPMs. A flow restrictor, or ‘trickle feeder’, is a brass disc with a tiny hole in the centre which is placed in a pipe, dramatically reducing the diameter of the pipe and restricting the flow to a level that approximates the FBW amount.98 These notoriously unreliable flow restrictor devices restrict the flow of water to unacceptable levels where people have to wait for hours to fill a bucket, are not guaranteed access to a sufficient amount of water, and if there is an emergency i.e. a fire, do not have ready 98

Fault Lines

Eliminating water and sanitation backlogs is a politically charged issue, and while municipalities report on progress made in terms of eradicating water and sanitation backlogs (as discussed in part 5.1), they seldom mention how many households have had their water entirely disconnected, or have had water restriction devices imposed, due to non-payment of bills. Only one municipality - eThekwini - provided us with figures on disconnections. According to this information, between October 2007 and March 2008, eThekwini has issued 20,669 water disconnection notices. Of these, 15,106 households have been disconnected and the remaining households have had water restricting devices installed, as opposed to being outright disconnected.

settle the account. An acknowledgment of debt must be completed to settle the arrears; however only account holders with positive proof of ID or an authorised agent with Power of Attorney will be allowed to complete an acknowledgment of debt. Therefore, if you are not an account holder (i.e. a backyard shack dweller), you will be disconnected. More broadly, the municipality might restrict or disconnect supply whenever the user of the service fails to make payment, arrangement for repayment, fails to comply with condition of supply of the municipality, or causes a situation where in the opinion of the municipality it is dangerous or a contravention of relevant legislation. These conditions are worrying because it gives the municipality broad terms to justify disconnecting or restricting water supply. When asked if there is any requirement to ensure that people are not disconnected for their inability to pay, most municipalities either answered negatively, or said that their indigent policy covered this.

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good such as water, strategies driven simply by costrecovery motives are problematic because they measure success purely in financial terms and not in terms of developmental benefit to the individual or group and public benefit to society more generally. Often the most frequent outcome of cost-recovery strategies is to devolve the costs from the government to the user.

Loftus, A., “’Free Water’ as Commodity: The Paradoxes of Durban’s Water Service Transformation.” In McDonald, D.A and Ruiters, G (eds.), The Age of Commodity: Water Privatization in Southern Africa (London, 2005), p. 194.

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access to water. PPMs operate on a ‘pay-as-you-go’ principle, requiring people to purchase additional (to the FBW allocation) water credit in advance, in the form of vouchers. If there is no water credit the PPM mechanism automatically disconnects the water supply once the FBW amount is exhausted, providing neither advance notification of the disconnection, nor opportunity to make representation prior to the disconnection, as required by section 4(3)(b) of the Water Services Act. Flow restrictors

Moses Kotane, Madibeng, Dr J.S. Moroka, Blouberg, Ekurhuleni, Nelson Mandela Bay, City of Cape Town, eThekwini, Amathole, Msunduzi all stated that they use trickle or flow restriction devices, with Moses Kotane, Lepelle-Nkumpi, Msunduzi and Madibeng all stating that registered indigents must accept a flow restrictor device in order to qualify as indigent and receive FBW. In eThekwini, when a person falls into arrears the notification is printed on the account, providing a toll-free help line and information of offices where the account can be paid. If there is no response from the customer, the water supply is restricted to a flow of 1 litre per minute. Flow restrictors are installed in the water connections of all domestic customers who have not paid for water for 60 days and who owe the Council more than R110 for water used. If people tamper with the flow restrictor, the connection is completely removed and a standpipe is installed at the closest municipal premises to allow for the provision of FBW. According to the municipality, water restriction is a punishment. According to Dr J.S. Moroka Municipality’s 2007 WSDP, “the option of uncontrolled flow is considered viable only where people can pay for services and revenue collection will be imposed. It is not effective to read meters and to do billing and debt collection from indigents.”99 Therefore, the main advantage of flow restrictors, according to the municipality, lies in the 99

Dr J.S. Moroka Local Municipality, “Water Services Development Plan: Revision 1” (March 2007), chapter 2, p. 3.

ability to restrict the volume of water to 6kl, therefore rendering the process “cheap and simple.” This logic is highly problematic, particularly as there is little or no attempt within municipalities to investigate whether the 6kl default amount is sufficient to meet the needs of the poor households within each municipality. Yet, this approach appeared to us to be the norm when speaking to municipal officials, especially those dealing with largely poor jurisdictions and limited capacity. The installation of flow restriction devices is being considered in Stellenbosch municipality, who state that it considers it inhumane to disconnect households; however, flow restriction devices are arguably just as perverse and inhumane and furthermore, highly discriminatory. In Albert Luthuli Municipality, the Department of Finance implements its credit control policy and notifies the Department of Technical Services where to impose flow restrictors or trickle feeders. Here, the restriction of water can be implemented when the municipal account is only one day overdue. If the debtor is in arrears for 30 days, the municipal manager commences legal proceedings against the debtor, which involves summons, court trials and as a last resort, the sale and execution of property. Indigent households are exempted from this action; however a cause for concern is those households who are poor but not registered as indigent and for whatever reason cannot pay their bill on time. If they default on payment (because they simply cannot afford payment) then the municipality restricts their water supply, penalising and criminalising them in the process. Flow restrictors have not yet been legally challenged, though they are vulnerable to a challenge based on section 27(1)(b) of the Constitution in conjunction with the Compulsory National Standards. Regulation 3(a)(i) of the Compulsory National Standards states that the minimum standard for basic water supply services is 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

The introduction of PPMs to poor households (often in order for them to qualify for FBW in terms of the municipal indigent policy, as outlined above) is ostensibly to ‘protect’ the poor from the repercussions of credit control policies. However, in reality the installation of PPMs abdicates the responsibility for municipalities to notify and deal with poor households’ payment issues and constitutes a punitive credit control mechanism with neither adequate notification nor opportunity to make representation prior to the automatic disconnection of water. Of the interviewed municipalities the following use or are implementing PPMs: City of Cape Town, Madibeng,100 Amathole, Moses Kotane and Witzenberg. The City of Cape Town has indicated that it intends to roll out more than 20 000 ‘water meters’ within the next year. The director of water and sanitation for the City of Cape Town has stated however that its “water management devices” are not 100

Madibeng stated that they are piloting a PPM project (about 400 households) in Sonop because they believe that people in this area have access to good infrastructure and reticulation and can afford to pay for water, and that the municipality needs to collect this revenue. Interestingly, Madibeng also mentioned that in some areas people have been asking for PPMs to be installed, however the municipality believes that this is because people can bypass/override the system and obtain water for free.

PPMs, as imposed on the residents of Phiri, Soweto by the City of Johannesburg, were successfully challenged in the recent Mazibuko case, with Johannesburg High Court Judge, Moroa Tsoka, finding the installation of PPMs to be unlawful and unconstitutional.102 The Mazibuko judgment is currently being appealed by the City of Johannesburg, Johannesburg Water (Pty) Ltd and DWAF, but, nevertheless, given the unequivocal finding regarding the illegality of PPMs, it is disturbing that other municipalities in South Africa are continuing to install these devices in poor households.

5.5.5. Conclusion and recommendations on credit control enforcement

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Prepayment meters (PPMs)

prepaid meters and that the devices (7 500 of which have already been installed) cut water off each day once the free daily limit is reached. This is meant to conserve water and help poor residents budget their water properly, however the fact is that they still automatically disconnect after the exhaustion of the pre-agreed amount. When this occurs, apparently residents can then phone the municipality and apply for more water over and above the 10kl FBW per household per month. The South African Municipal Workers’ Union (SAMWU) has announced it will use the Mazibuko judgment as a basis for legal action in the future against the City of Cape Town, to challenge the automatic disconnection procedure in these meters.101

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per minute (own emphasis). It is highly unlikely that the flow restrictors being imposed on poor households comply with this regulation, and flow restrictors imposed often only deliver water at a rate of 1 litre per minute. This suggests that water restriction devices are not only morally problematic, but could be legally challenged. Any legal challenge that successfully outlaws a water restriction device will have substantial financial consequences for a municipality, a factor that municipalities should take into consideration before deciding to impose such devices on the poor.

Neoliberal cost-recovery approaches to water services provision encourage strict credit control enforcement for non-payment by the poor. Although more research is needed to confirm this, there appears to Foster, W., “Water wars move to Cape.” Mail and Guardian (14 May 2008): http://www.mg.co.za/ articlePage.aspx?articleid= 339008&area=/insight/ monitor/. Accessed 15 October 2008. 102 Mazibuko judgment, at note 33, paras. 154-155 and 160. 101

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be a worrying trend to impose harsh credit control measures on low-income residents, while higherincome residents, businesses and government departments are afforded far more leniency when they do not pay their municipal accounts. Indeed, while government institutions (and high-end domestic users not canvassed in this research) get away with using water on credit and not paying bills, poor water users are disconnected or restricted to the free basic amount through means of flow restrictors or PPMs. Such methods of water restriction constitute an aggressive and immediate form of credit control enforcement and alienate citizens from their service providers. Further research should be undertaken to investigate the financial impact and extent of non-payment by other types of users, such as industry, agriculture, mining, high-end domestic users, as well as government departments. In the meantime, and anyway, it might be necessary to accept that there are poor residents who will never be able to pay for water services (especially those caught in debt traps), and to forgive their debt, focussing rather on those consumers who default but can afford to pay for water services. In this regard, we recommend that municipalities and DWAF investigate the true economic and social effects of enforcing de facto disconnections in low-income areas for non-payment of services, as it has been shown that in OECD countries there is little economic impact on water companies whether they enforce disconnections or not.103 Water disconnection to poor households should be governed by considerations of equity, to ensure that people who are unable to pay for water do not have their health and dignity compromised by a municipality disconnecting their water supply. In a number of countries, including Spain and Germany, water disconnection is not permitted unless the water company can prove that it has no other means 103

Smets, H., “Social Protection in Urban Water Sector in OECD Countries.” Presented at the Consumer Protection and Public Participation in the Reforms of the Urban Water Supply and Sanitation in the EECCA workshop (Paris, 4-5 March 2002), p. 19: http://www. oecd.org/dataoecd/17/44/2391508.pdf.

to obtain payment of its bill. In England and Wales, water disconnection was prohibited by law in 1999 after wide use in the early 1990’s. In France, there is agreement between water utilities companies and local authorities that families with children and disabled persons may not be disconnected. Poor people with water in arrears have a moratorium for payment during a few months and are entitled by law to seek financial assistance from local social services. If they do not get such assistance, then they are often cut off. PPMs with automatic disconnection are very rare.104 When French courts have to decide on a water disconnection case for non-payment, they usually order the reinstatement of supply in order to protect health and human dignity. As court proceedings are slow and costly, NGOs prefer putting pressure on mayors with a view to reinstating water without delay or cost. Officials as well as utility managers dislike publicity concerning disconnections of poor households because they know that the public would not support such drastic measures. In many municipalities mayors have decided neither to disconnect poor people, nor to allow water utilities to do it; however will rarely admit it publicly so as not to encourage non-payment of water bills. In some municipalities such as Saint-Denis, the mayor has taken a decree to forbid water disconnections of poor households. In Paris, disconnection has to be authorised by the Mayor.105 Finally, water restriction to poor households, too, should be governed by a principled approach. If municipalities can show that they prioritise debt recovery in rich households, businesses and government buildings, and where serial domestic defaulters have been warned and had opportunity to make representations, Smets, H., “Implementing the Right To Water in France.” Paper presented at the Workshop on Legal Aspects of Water Sector Reforms, International Environmental Law Research Centre (Geneva, 20-21 April 2007), p. 7: http://academie.oieau.fr/IMG/pdf/ FranceGen-2.pdf. 105 Ibid., p. 8. 104

The lack of financial and technical assistance available for water services provision at the local level was frequently identified by municipalities as a problem, and there appears to be justification for local authorities to question the nature and extent of the assistance they receive from DWAF and national government more generally. The apparent lack of political will on the part of national government to assume overall responsibility for the rollout of water services to the poor, particularly through committing necessary technical and financial resources to capacitate and fund local authorities, remains a problem. Our research indicates that the main sources of inter-governmental financial assistance, the MIG and ES, are insufficient to meet the water services-related needs of the poor, and poor municipalities (without rich water users) cannot cross-subsidise effectively. While this lack (or perceived lack) of financial and technical assistance does not always exonerate municipalities for poor service delivery, it does appear to be a systemic problem. In any event, whether the source of the problem is at the local or national government level, we argue that national government must take ultimate responsibility in the interests of ensuring universal access, whether through providing additional financial or technical assistance. This fault line deals with:

problems with ES funding; insufficient funding for the maintenance of

infrastructure; and lack of skilled staff, leading to unfilled positions

and the appointment of under-qualified staff.

5.6.1. Problems with MIG funding As discussed in part 4.4, the MIG is a consolidated conditional grant from national government to municipalities, designed to cover the capital costs of infrastructure rollout to the poor. The MIG is a temporary measure in place, officially until 2013, or until municipalities are able to adequately raise internal revenue to cover all water services-related costs. The formula used to calculate the MIG takes into account the number of water and sanitation backlogs in the municipality, the water and sanitation allocation amount and the total number of backlogs in South Africa.106 The DPLG, DWAF, DPW and National Treasury are each responsible for different aspects of the allocation and monitoring of the MIG.107 A major problem with the MIG is that often municipalities are not sufficiently capacitated to plan innovatively and effectively around the MIG process, and poor planning results in service delivery targets not being met, MIG funding not being spent efficiently or not being spent at all.108 Thus, often municipalities that most need the funds are least able to spend them. Furthermore, if a municipality

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5.6. Financial and Technical Assistance

problems with MIG funding;

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then humane water restriction devices might be utilised, as long as deployed fairly across rich and poor areas. This suggests a role for DWAF in regulating, monitoring and enforcing guidelines and safeguards across municipalities. In addition, ways must be found to prevent water debt in the first place. This includes subsidising water services, including O/M costs, to poor households and communities, whether through steeper tariffs for luxury consumption within a municipality and/or greater transfers from national government.

DPLG, Policy Framework, Appendix A, p. 2. Ibid., pp. 11-18. 108 A recent article showed that Madibeng municipality, despite being the fastest growing municipality in the North West province, had only spent about 48 percent of its entire MIG fund with less than two weeks to go till the end of its latest budget cycle. See “North West municipality under-spending.” IOL (23 April 2008): http://www.iol.co.za/index.php?set_id=1&click_ id=124&art_id=nw20080423114551842C898391. Accessed 15 October 2008. 106 107

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does not spend all the MIG funding in the year it is allocated, the amount can be reduced. This aims to promote financial transparency. However, in under-capacitated municipalities, it has the adverse consequence of reducing financial assistance when greater assistance is needed to meet water services needs. In capacitated (but poor) municipalities – that are able to leverage maximum funding and utilise it – the MIG is insufficient to meet needs. In other words, the reality on the ground is that MIG funding is insufficient for capacitated municipalities and generally cannot be spent in under-capacitated municipalities.109 The net outcome on the ground is the same – poor communities without adequate access to water services infrastructure. The plan to terminate MIG funding in 2013 is a further concern, especially for those municipalities that are unable to effectively utilise internal tariff cross-subsidies.

5.6.2. Problems with ES funding As described in part 4.5, the ES is an unconditional grant (meaning that municipalities are not required to report on how they allocate or spend their ES) from national government to local government, which serves as the main subsidy for O/M costs. One criticism of the calculation of the ES that arose in the interviews is the use of the “Revenue Raising Capacity Correction” proxy figure in the formula (set out in part 4.5), which is derived from reported revenue raising capacity information reported to Stats SA, along with objective municipal information from Stats SA (usually based on Census 2001 figures). It has emerged that the definition of “household” used in the Census does not correlate predictably with the units to which municipalities supply services. Thus, census-defined households are not a good proxy for consumer units, leaving no standard way of establishing the number of consumer units serviced and those requiring services. Rather, the critical figure to base any calculation on is the absolute number of poor households per municipality – this would ensure 109

This finding is echoed in The Water Dialogues, “Preliminary Discussion Document”, at note 53.

more accurate and fairer ES allocations. To date there has not been a move to address this data capturing and analysis problem.110 Basing the ES allocation on inaccurate and outdated figures has negative financial implications for many municipalities. For example, Nelson Mandela Bay stated that its operational budget is not sufficient or sustainable as it is based on historical data, which do not accurately reflect the contemporary reality. Officials explained that this is because Nelson Mandela Bay’s ES is calculated on the basis of basic service provision in rural areas; however, the municipality is moving towards a higher level of service delivery to poor consumers in urban areas, which the ES calculation does not currently reflect. A few municipalities complained that their ES allocation was insufficient, with the City of Cape Town stating that they could not cover the real cost of financing FBS with their ES allocation and had to use cross-subsidisation. This is not necessarily a problem, as better-resourced municipalities such as Cape Town, should be able to effectively cross-subsidise using revenue from rich water users. However, in poor municipalities this is not possible, suggesting the need for much greater ES allocation to poor municipalities. Several municipalities mentioned, as problematic, the fact that (largely because the ES is an unconditional grant) ES allocation within municipalities is neither regulated nor transparent. While the horizontal division (between municipalities) of the vertical ES (from national) is stipulated, as per the annuallypromulgated Division of Revenue Act (DORA), the split of equitable share between different departments within municipalities is not. Thus, the amount allocated to water services provision in each municipality is left

110

Whelan, P., “The Local Government Equitable Share: An explanation of its evolution and an evaluation of current arrangements.” IDASA (February 2004): http://www.idasa.org.za/gbOutputFiles.asp? WriteContent=Y&RID=626.

Our overriding impression from the interviews is that poor municipalities do not receive sufficient ES to adequately cover their O/M needs. A common consequence is inadequate spending on maintenance, resulting in widespread problems (such as leaking and burst water pipes and clogged sewerage) related to faulty infrastructure. Indeed, the majority of municipalities we interviewed mentioned that they do not have enough funding for maintenance. Dr J.S. Moroka Municipality was the only municipality to state that it had sufficient funding for maintenance, but that it had a problem spending its grants and subsidies because of the lack of adequate planning for both maintenance and operations. Albert Luthuli Municipality explained that it has difficulties in managing the financial burden of providing water and sanitation services (to a largely povertystricken population), as well as being responsible for maintenance. Yet the municipality continues to try to

Indeed, this situation seems to be a common one and does not leave much choice for municipalities struggling with financial and capacity constraints. Recently, deteriorating infrastructure, drought and cable theft left several communities in northern KwaZulu-Natal with a serious water crisis, with the WSA blaming their “shoe-string budget” which does simply not stretch far enough. According to the WSA, its operating budget is R50 million short of what is required to supply the area’s two district municipalities.111 A persistent problem is that ES allocation does not provide for adequate O/M of infrastructure, and the MIG is focused at capital expenditure.

5.6.4. Inadequate human capacity Most of the municipalities interviewed expressed the desire to increase their staff capacity, both in terms of numbers and skills. They are concerned that their failure to attract skilled graduates – especially engineers and technicians, who are vital for the construction, maintenance and repair of water services infrastructure, as well as the treatment and testing of water quality – seriously threatens current and future service delivery. As recognised by Mike Muller, former directorgeneral of DWAF: “the ability of municipalities to keep piped water clean and safe depends on having appropriately qualified people in place to lead service provision, and currently many municipalities are in a state of crisis because they do not have enough of these people on their staff. Organisational competence is a major issue.”112

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5.6.3. Insufficient funding for infrastructure maintenance

implement a cost-recovery process in order to obtain much needed internal revenue in order to finance its O/M.

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solely to the discretion of the municipality itself. The effect of this in many municipalities is that water services departments often end up receiving very little of the ES funding. For example, Ekurhuleni water services officials complained that the ES allocation is primarily used up by the finance department and little or no ES funding is ever seen by the water and sanitation department. While some may believe this is in the interest of local democracy and municipal autonomy to allow maximum discretion to municipalities, those involved in the provision of water services have recommended that the ES amount should be earmarked (and Gazetted as such), with specific amounts allocated for water and sanitation services. It would seem to us that a more conditional or regulated approach to the ES would, in fact, promote local government transparency and accountability, even if it detracts somewhat from local government autonomy. In our view, the trade-off is a necessary one.

“Northern KZN faces serious water crisis.” SABC News (13 September 2008): http://www.sabcnews. com/south_africa/general/0,2172,176795,00.html. Accessed 15 October 2008. 112 Mike Muller, quoted in “Developing crisis number two.” The Weekender (17-18 May 2008), at note 7. 111

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According to a recent SALGA report, one in three municipal councillors cannot read or write and more lack basic competencies to run local government finances. Also, more than two-thirds of councillors – including those who serve on mayoral committees – do not understand their roles, responsibilities or local government legislation. These municipal councillors have little understanding of local government issues and the high illiteracy rate is greatly contributing to poor service delivery.113 This is particularly worrying in light of the fact that public participation in water services provision is facilitated primarily through ward councillors and ward committees, and it appears that those tasked with linking communities and local government are largely incapable of doing so effectively or at all (see part 5.9 for more discussion of public participation). A recent statement by a DWAF spokesperson points to the widespread shortage of skilled personnel at municipal level being related to that fact that graduates with the requisite skills are snapped up by the private sector, which can afford to pay higher salaries.114 In an attempt to counteract this trend, DWAF has established bursaries to attract young people to study specialised courses on water issues. However, there is an official cap on wages for municipal workers, so it is likely that the private sector will always be able to offer higher salaries than local government. During our interviews, some municipalities mentioned that the cap on wages impairs their ability to attract skilled full-time professionals and, as a result, if a municipality wants to get a project completed properly, it must hire expensive consultants. Although it is costly to hire consultants, municipalities view this cost as worthwhile because it potentially decreases the longterm cost of having to repair the work of unqualified

and inexperienced municipal workers a few years down the line. However, municipalities recognise that outsourcing key municipal functions often impairs the development of internal institutional knowledge. Municipalities have to deal with financial as well as technical challenges in meeting delivery targets and carrying out O/M. Limited staff capacity leads to the prioritisation of certain aspects of water and sanitation delivery at the expense of others. For example, Madibeng Municipality has access to software technology to monitor infrastructure, however the programme has not yet been used as there is a chronic lack of skilled staff to use the software. Interestingly, while Madibeng is relatively capacitated, and is the fastest growing municipality in the North West province, it has been under-spending its MIG allocation, having only spent 48 percent of the fund at the end of its recent budget cycle. The municipality is also struggling to fill certain key management posts which critically affect service delivery in the area.115 While it is clear that municipalities are experiencing a crisis of lack of skilled personnel, there is a debate about the extent to which service delivery problems can be attributed to ‘lack of capacity’ or staff shortages. Some have argued that a prioritisation problem, rather than a capacity problem is the greatest hindrance to service delivery. As Ben Fine points out, if South Africa is able to find the skills and infrastructure to build World Cup Stadiums and sophisticated transportation facilities like the Gautrain, then surely it should be able to build (at least) enough VIP toilets and community standpipes within 200m for all its citizens.116 In reality, there is probably a combination of lack of political will at the national level and of capacity at the municipal level, suggesting some role for DWAF as a national

“North West municipality under-spending.” IOL (23 April 2008), at note 108. 116 Fine, B., “The Minerals-Energy Complex is Dead: Long Live the MEC?” Paper presented at the Amandla Colloqium (Cape Town, 2008), p. 10. 115

Mbanjwa, X., “Municipality literacy shock.” IOL (27 August 2008): http://www.iol.co.za/ index.php?set_id=1&click_id=13&art_ id=vn20080827060000370C991228. Accessed 15 October 2008. 114 DWAF spokesperson quoted in “Developing crisis number two” The Weekender (17-18 May 2008), at note 7. 113

quality standards; inter-governmental and inter-departmental issues

around water quality; problems with water quality monitoring at the

local level; and the deteriorating quality of water in many South

African dams.

5.7.1. DWAF’s role in monitoring and enforcing water quality standards

Our research findings suggest that current MIG and ES funding is insufficient to ensure universal access to adequate water and sanitation, particularly in uniformly poor municipalities with limited potential to secure revenue from internal tariff cross-subsidies. A frequent casualty of this reality is the inadequate maintenance of infrastructure, meaning that municipalities face chronic problems of faulty piping etc., which adversely affects their quality of service as well as their long-term finances (while savings can be made in the short-term by neglecting maintenance, in the medium- and long-term such neglect leads to higher costs). A further exacerbating factor is municipalities’ inability to attract the requisite skilled personnel to carry out key functions. It is clear that, if water services are to be prioritised as they should be, additional funding from national government must be made available to ensure the necessary financial, technical and human resources reach the municipal level, where water services delivery occurs.

DWAF has played a relatively large role in water quality monitoring and regulation, in comparison to its regulation of any other aspect of water services provision at a local level. There is, however, a consensus amongst many organisations that a water quality crisis looms.117 In response, DWAF has launched a new certification scheme for water and sanitation services across municipalities. Municipalities that comply with 95 percent of the criteria set for effective drinking water management will receive a Blue Drop certification, while municipalities that complied with 90 percent will receive Green Drop certification. The stated aim of the initiative is to build the confidence of citizens and tourists and to incentivise municipalities through cash benefits for compliance. According to DWAF, those municipalities that do not comply, will receive Red Drop status and will be named and shamed publicly.118 It would appear that this initiative will do little more

5.7. Water Quality

117

At the time of writing this report fears had been expressed about a looming water quality crisis. Media reports of baby deaths and cholera outbreaks in poor and rural areas speak to the fact that a large proportion of the population does not have adequate access to sufficient clean and safe drinking water and sanitation facilities, and that not enough is being done by local municipalities, water services providers and DWAF to address the crisis. This fault line deals with:

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5.6.5. Conclusion and recommendations on financial and technical assistance

DWAF’s role in monitoring and enforcing water

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regulator, but also a role for political and civil society in pressuring government to prioritise water services through the allocation of sufficient financial resources and the deployment, where necessary, of skilled personnel to municipalities.

A submission made to the Parliamentary Portfolio Committee on Water Affairs and Forestry’s public hearings on water quality in June 2008, by the South African Water Caucus, ECO-CARE Trust and the CSO Regulations Reference group, highlighted some of the issues and fears regarding water quality at present (no electronic version currently). 118 Swanepoel, E., “DWAF unveils new water certification scheme for municipalities.” Creamer Media’s Engineering News (11 September 2008): http:// www.engineeringnews.co.za/article.php?a_id=142934. Accessed 15 October 2008.

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than provide financial reward to those municipalities that are already performing well, quell the fears of rich water consumers, and embarrass those municipalities that are not complying with water quality standards, which could be for myriad structural reasons. Our concern is that this process might not necessarily address the structural reasons for municipal noncompliance and under-performance (many of which are outlined in this report), which would leave many vulnerable local populations at risk. However, it is hoped that, if the new certification scheme dovetails with the process around developing DWAF’s role as a national water services regulator, an effective system of water quality enforcement might be forthcoming. Obviously, the sooner this happens, the better. Among the interviewed municipalities, DWAF’s most prominent role in technical assistance to municipalities was most consistently cited as being that of monitoring water quality. DWAF uses a company called Emanti Management located in Stellenbosch, who administers the Water Quality Management System (WQMS). Each WSA in South Africa is required to submit monthly reports to the WQMS website and consultants analyse and report back to the WSA. Some of the difficulties with regulating on reports to a national website include the accuracy of the data reported on, as well as how municipalities facing staff technical and administrative challenges are expected to find the resources to report accurate data and respond effectively to early signs of water quality problems. Recently, the Democratic Alliance (DA) used the Promotion of Access to Information Act (PAIA) to gain access to WQMS water quality reports in order to establish whether the deaths of 80 babies in Ukhahlamba in the Eastern Cape, were directly related to contaminated water supplies. According to the DA, 43 of 83 towns in Free State “have at one stage or another received ‘code red’ ratings according to the WQMS monthly drinking-water quality summary reports, indicating the quality of the water was dangerously compromised for a number of consecutive months.”119 119

Hartley, W., “DA turns to law to get water reports.” Business Day (3 July 2008): http://www.businessday.

Ekurhuleni municipality stated in its interview that DWAF “regulates by providing municipalities with guidelines and then walks away.” All of the municipalities interviewed, besides Madibeng, stated that that they play a role themselves in water quality monitoring, with Madibeng stating that they have a challenge with capacity and there are not enough skilled people to conduct sampling, as well as cope with the frequency of monthly monitoring. LepelleNkumpi mentioned DWAF as a major role player in monitoring their water quality, and that Mvula Trust assists in monitoring sanitation. It is clear, however, that municipalities generally adopt a more reactionary approach to water quality monitoring, as opposed to proactive approaches which would foresee and effectively counter emerging water quality problems before they developed. According to Blouberg Municipality’s IDP/Budget 2007/2008, the majority of its population do not have access to clean water and the majority of people receive their water from natural sources, the quality of which is highly questionable. Indeed, reactionary approaches by municipalities to the monitoring of deteriorating and aging infrastructure, and the testing of water quality, are a major cause of water quality scares and disease outbreaks in South Africa. Added to this is the uncertainty as to how effective DWAF will be in future in coordinating policies and projects with other departmental sectors to ensure the safety of water quality in South Africa.

5.7.2. Inter-governmental and interdepartmental issues The responsibility for monitoring water quality is shared between DWAF and the DoH and there has been criticism as to the effective coordination between these two departments in ensuring water quality. Leading public health expert, Professor David Sanders, recently stated that South African co.za/articles/topstories.aspx?ID=BD4A795259. Accessed 15 October 2008.

Thom, A., “Water and sanitation undermines health efforts.” Health-e, (5 June 2008): http://allafrica.com/ stories/200806050798.html. Accessed 15 October 2008. 121 Mkhwanazi, S., “Baby deaths: department set for talks. ” IOL (6 May 2008): http://www.iol. co.za/index.php?set_id=1&click_id=13&art_ id=vn20080506121028412C860907. Accessed 15 October 2008. Also, two people died from cholera recently in Kliptown, Soweto with residents pointing to deep-seated problems related to poor sanitation facilities and the lack of access to potable water in the area. See “Cholera in Soweto.” IRIN (22 April 2008): http:// www.irinnews.org/Report.aspx?ReportId=77858. Accessed 15 October 2008. 122 “Deaths of E Cape babies blamed on ignorance.” SABC News (28 July 2008): http://www.sabcnews.com/ south_africa/health/0,2172,174175,00.html. Accessed 15 October 2008. 120

5.7.3. Problems with local level monitoring All municipalities stated that they use the South African National Standard Drinking Water Specification 241 (SANS 241); however municipalities differ on the questions of who carries out the monitoring, how often it occurs and where samples are taken.123 The lack of skilled professionals at the local level is a major problem for municipalities. According to a senior water researcher at the Council for Scientific and Industrial Research (CSIR), up to fifty percent of municipalities do not even have one qualified engineer on their staff.124 More capacitated municipalities like City of Cape Town and Nelson Mandela Bay, have their own water quality laboratories, while other municipalities like Moses Kotane and Albert

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Another problem with inter-governmental and interdepartmental cooperation, as evidenced in the City of Cape Town and Ekurhuleni, is that migration to urban areas increases the densification of settlements and the provision of water and sanitation services is strongly linked with local, provincial and national departments of housing, and their formalisation of settlements. This creates the challenge of inter-governmental and

inter-departmental fragmentation and a common competency crisis, whereby responsibility is delegated back and forth between departments and the blame for failure is often placed on local municipalities while the people suffer from inaccessibility to adequate water, sanitation and housing. This fragmentation is also reflected in local water services departments’ scant reference to the health-related issues of water services and points to the broader structural problem of the artificial detachment of water from health at the local government level, itself a casualty of the constitutional hierarchy in which water services are located at the local level, while health services are located at the provincial level.

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health officials have failed to advocate for more free water while efforts to improve sanitation have been undermined by lack of funds, resulting in high levels of disease and mortality mainly among the poor. He stated that municipal environmental health officers, who were supposed to facilitate the improvement of conditions, were “inappropriate” and had been trained to “inspect restaurants in middle-class suburbs.”120 Recently, over a hundred children died from drinking allegedly contaminated water in Ukhahlamba in the Eastern Cape.121 The alarming recent findings of an investigation by the Standing Committee on Health into the deaths in the Eastern Cape, revealed that the provincial Health Department and Ukhahlamba Municipality failed to prevent the deaths of babies due to “ignorance on the part of officials.”122

For information on SANS 241 see DWAF, “Drinking Water Quality Management Guide for Water Service Authorities.” (September 2005): http:// www.dwaf.gov.za/Documents/Other/DWQM/ DWQMWSAGuideSept05.pdf. 124 Béga, S., “SA water quality is fast deteriorating.” Pretoria News (22 September 2008): http://www. iol.co.za/index.php?set_id=1&click_id=13&art_ id=vn20080922055620719C472879. Accessed 15 October 2008. 123

Water Services Fault Lines

Luthuli outsource this function and use private labs or consultants to test water quality. Blouberg relies on the Capricorn District Municipality and consultants to test water quality while Dr J.S. Moroka has both an internal team and an independent consultant who monitor water quality. Differences also exist in the frequency of water quality testing, with Albert Luthuli Municipality and Dr J.S. Moroka Municipality both stating that they take daily samples, and Nelson Mandela Bay stating it takes monthly samples. While City of Cape Town has the capacity to take water quality samples at the household level, Moses Kotane does not and simply hires consultants to test at its treatment plants. Dr J.S. Moroka Municipality officials stated that they do not have sufficient personnel, equipment or vehicles to deal with the required procedures for testing water quality. Indeed, aging infrastructure and neglect of O/M can contribute to hazardous water quality, while unaffordable water tariffs and expensive water, disconnections and restriction devices also contribute to people gravitating to untreated and unsafe water sources like rivers, streams and dams.

5.7.4. Deteriorating water quality in South African dams A recent research report by the Council for Scientific and Industrial Research (CSIR) revealed that 11 percent of South Africa’s major dams have had “significant to severe” problems with algal and cyanobacterial blooms, which has been confirmed by the Minister of Water Affairs Lindiwe Hendricks. Toxic bacteria known to be harmful to human health have been found in most of South Africa’s rivers and reservoirs which supply most of South Africa’s drinking water. The contamination is rapidly getting worse due to controversial government water quality guidelines that some scientists have opposed for years.125 Among the worst affected water bodies are

125

Jordan, B., “Bacteria poisons dams and rivers.” The Times (14 June 2008): http://www.thetimes.co.za/ PrintEdition/Article.aspx?id=785066. Accessed 15 October 2008.

the Shongweni and E J Smith dams in KwaZulu Natal, and the CSIR’s researchers were also surprised to find blooms in Midmar Dam during winter, the first report of such a bloom in winter anywhere in the country. The Umgeni/Midmar system supplies about 45 percent of the drinking water in Durban and Pietermaritzburg, however an Umgeni Water spokesperson said tests showed no indication that any treated water from Umgeni dams was contaminated by these toxins. A recent written submission to Parliament by Hendricks confirmed a major threat of possible bacterial ‘blooms’ in 58 percent of dams monitored by government water quality inspectors, including Hartbeespoort and Rietvlei in Gauteng; Shongweni outside Durban; and Theewaterskloof and Voëlvlei in the Western Cape.126 While a CSIR spokesperson stated that there is no need for panic and that people who drink water treated by Umgeni Water and other large water utilities have nothing to worry about, he added that the research pointed to the need to intensify monitoring procedures for toxic cyanobacteria in South African dams, and possibly for new methods to eliminate some of these bacteria during the watertreatment process. Part of the problem is that cities like Johannesburg and Pretoria generate large volumes of sewerage, which even if treated in municipal treatment works eventually ended up in rivers and dams where the water became artificially enriched or eutrophied. If people are exposed to this water, it is potentially extremely harmful often causing death. Although there is treatment that is effective in removing the poisons, this method of treatment is expensive and not all wastewater treatment plants in South Africa are equipped with this technology.127

126 127

Ibid. Carnie, T., “Researchers warn of hidden dangers.” Cape Times (24 July 2008): http://www.iol.co.za/ index.php?art_id=vn20080724062424746C963343. Accessed 15 October 2008.

DWAF also needs to address the deteriorating water quality in dams and to ensure uniform compliance with water quality standards across municipalities. We fear that the new certification scheme, especially if focused merely at naming and shaming non-complying municipalities, will not address the root causes of the problem, which relate to insufficient financial and technical assistance, as well as human capacity, at the local government level.

5.8. Water Demand Management (WDM) Water Demand Management (WDM) is broadly a water conservation mandate, and is a shift from the supply to the demand side of water services provision, focussing on the sustainability and management of water as a scarce resource rather than on the extension of new infrastructure. However, with their preoccupation on cost-recovery, municipalities do not necessarily promote water conservation at the expense of gaining more revenue from high water consumption. When asked if there was any conflict between the WSP wanting to maximise profits and municipality wanting to conserve resources, most municipalities had no answer, however Witzenberg indicated that

the false dichotomy drawn between water

conservation and social justice goals; the need for WDM strategies to be based on

current and accurate data that includes reference to historical inequalities; the ineffectiveness of municipalities in addressing

water leaks; and the lack of water conservation education within

municipalities. The National Water Audit requires WSAs to prepare water conservation and water demand management strategies in order to achieve the efficient use of water. Formal WDM policies and strategies are in place in eThekwini, City of Cape Town, Ekurhuleni and Nelson Mandela Bay, with Lepelle-Nkumpi stated that a task team had been put in place to look at WDM and the municipality expressed a strong desire to understand water demand because of the increasing pressures that rapidly expanding development and growth in the area is having on them. Witzenberg also stated that they have a Water Conservation and Water Demand Management Plan in development. Many municipalities are struggling to eradicate backlogs in water services provision, and are put under more pressure by an environment of limited financial and technical resources, environmental factors which cause water shortages, and rapidly increasing development and demand in their jurisdictions.

Fault Lines

In many countries, water quality is managed by the health, rather than the water, department. In South Africa there has been a somewhat unsatisfactory division of responsibility between health and water departments but, until recently, DWAF has been relatively successful at ensuring high water quality standards across the country. However, there is evidence that DWAF’s system of water quality management is under strain and requires urgent attention to avert further water contamination and related deaths.

it would welcome households to use more water to increase their income. This fault line deals with:

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5.7.5. Conclusion and recommendations on water quality

5.8.1. False dichotomy drawn between water conservation and social justice goals In essence, WDM highlights the ongoing tension between ‘red’ and ‘green’ justice. ‘Red justice’ describes social justice, which prioritises the poor and their socio-economic needs, while ‘green justice’ refers to the prioritisation of the environment and its sustainability i.e. environmental justice. The South African water

Water Services Fault Lines

services management paradigm tends to pit the two objectives against each other, especially at the local level, where constraining poor people’s access to water is sometimes posited as having an environmental justice objective.128 It is important to note from the outset that ‘red’ priorities need not compromise ‘green’ ones, particularly in relation to water consumption by poor people. A recent submission made by the Environmental Monitoring Group (EMG) to the Parliamentary Portfolio Committee on Water Affairs and Forestry, stated that: We fully support water demand management as a means of reducing water consumption and limiting the need for new water supply sources. Indeed, it is a critical response to climate change. However… there are ways in which it can (and has) been abused. The most common, is as an excuse to limit poor people’s access to water. For example, in many municipalities across the country, we see that Free Basic Water of 6kl per household per month, which was supposed to be a minimum, has de facto become a maximum. Pricing or technology restricts additional water use. More and more, the reason local governments provide is that we need to conserve water. What they really mean is we need to conserve water that is not incomegenerating. High end (paying) water users are not

‘Green’ concerns over water conservation should be focused on hedonistic water users like agriculture and industry, and rich households, and not poor domestic consumers who, in any event, use only a fraction of total water consumed in South Africa, and who should be encouraged to access sufficient water to meet their basic needs for health and dignity reasons. One mechanism for appropriate WDM, which reflects green and red objectives, is to utilise very high tariffs at the top end of the tariff curve, to deter rich households from hedonistic consumption.130 This is more difficult to affect in very poor municipalities that do not have rich households and in such areas, national government will have to intervene to ensure that red and green objectives are met.

5.8.2. Need to base WDM strategies on accurate data There is a clear need for water services and WDM strategies to be planned and undertaken according to current and accurate population data, which take into account areas of poverty and historical inequality. Without such information, it is not possible to develop an effective and equitable WDM strategy. One of the WDM challenges, and a critical problem in the extension of FBW, is that, the principle of ‘the more you use, the more you pay’, does not recognise the apartheid-inherited spatial dynamics (especially in urban areas) of densely populated, multi-dwelling,

restricted in the same way – the rich can waste. And so the dual goals of WDM and cost recovery can be 129

contradictory.

For example, the City of Johannesburg’s project to curtail water consumption-related losses in Soweto is called Operation Gcin’Amanzi (Operation Conserve Water), but the accompanying rollout of PPMs was recognised by Judge Tsoka to be aimed at credit control, rather than water conservation, and it is clear that there are no water conservation measures in place in rich suburbs, where they should be located (Mazibuko judgment, at note 33). 129 Environmental Monitoring Group (EMG), “Parliamentary presentation on the Legislative Review.” Submitted by Jessica Wilson to the Parliamentary Portfolio Committee on Water Affairs and Forestry 128

(13 August 2008), p. 2: http://www.pmg.org.za/files/ docs/080813emg.doc. 130 As already mentioned, there is a need for further research into the effect on high-end consumers of raising tariffs. From existing studies in Durban and Hermanus, it appears that quite substantial tariff hikes at the top end, which could sustain cross-subsidisation at the low end and contribute to municipal revenue, might result in some decrease in water consumption. The process of determining what level of tariff hike leads to the necessary amount of water conservation among hedonistic water users, without damaging overall revenue, needs to be an iterative one.

5.8.3. Municipal ineffectiveness in addressing water leaks An important issue to note is that a vast amount of water is lost each day due to water leaks, burst pipes and construction-related ‘accidents.’ This suggests that, an even more important aspect of WDM than tariffs is the timeous repairing of leaks, as well as the updating of infrastructure. A recent article published in the “Metro Watch” section of The Star explained that in a rich suburb in Johannesburg, a burst water pipe (on public property) had been left unattended for three weeks even after immediately being brought to the attention of the City’s water provider, Johannesburg Water (Pty) Ltd. According to a concerned citizen, who happened to be a consulting engineer, he estimated the amount of water left 131

Smith, L., “The Murky Waters of Second Wave Neoliberalism: Corporatization as a Service Delivery Model in Cape Town”, at note 98, p.177.

Clearly, water conservation is not only about attempting to reduce water demand and teaching poor residential users to use water sparingly, it is also about ensuring that rich households and large industrial consumers of water are complying with the same principles, and that the municipality is in a position to immediately rectify major water losses and ensure proper maintenance of infrastructure.

5.8.4. Lack of water conservation education One recurring theme that arose during our research was the non-existent, limited or ad hoc approach of most municipalities towards water conservation education and public participation. By this we are not referring to attempts to limit poor household consumption to the FBW amount (which we see as primarily a credit control objective), but rather to general information about water consumption and conservation and, in particular, attempts to educate rich consumers about conserving water and curbing hedonistic consumption.

Fault Lines

Cape Town provides an example of carelessly implemented WDM. According to Laïla Smith, the decision to implement a WDM strategy in the City of Cape Town emanated from influx into the city and rapid growth and development, which created a volatile situation of increasing demand with limited available finances. She states that “the implementation of WDM strategies in Cape Town ignored the spatial legacy of apartheid where the highest poverty rates in the city are in high density households living in township areas with historical underinvestment in infrastructure.” High density households in these areas obviously consume more water and also pay high monthly bills due to water leaks in deteriorating infrastructure.131 The adverse effect of the WDM policy was to penalise vulnerable and poor communities without applying it in a potentially more viable and effective manner to wealthy communities.

running in the road to be the equivalent of 765 m3 per hour, which is approximately 21,655kl per day at a cost of about R248,166 per day. Running for 21 days, this means that the City has lost over R5 million’s worth of water due to one leak in one suburb. The 454,755kl of wasted potable water is the equivalent of the monthly household FBW allocation (6kl) of over 75,792 households (which is more than the entire population of Moses Kotane Municipality).132 This incident illustrates the vast water losses that can result in one leak, and the importance for municipalities to have a swift and effective response to any reported leaks within its jurisdiction.

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households. This needs to be taken into account when developing WDM (and FBW) strategies.

Our research suggests that most ‘water conservation education’ is focused at poor people, creating the Flanagan, L., “When Water is Money”, The Star (1 August 2008).

132

Water Services Fault Lines 68

unavoidable impression that it is really aimed at credit control rather than water conservation per se (which would be much more effectively focused on the heavy water users like rich households and business, industry, agriculture etc). Moses Kotane Municipality mentioned no specific mechanisms in place for water conservation education; however the 2006/07 IDP does mention that R450,000 was allocated for the “education of toilet users.” Albert Luthuli Municipality stated that at present there is no public education on water conservation; however this will be addressed in its WSDP, while Witzenberg stated that it does not have any mechanisms in place, DWAF is formulating a plan to educate community development workers (CDWs) who will in turn educate communities with regards to water consumption. Lepelle-Nkumpi said that it uses the IDP forums to promote water conservation, as well as local radio stations, During the annual National Water Week, Madibeng stated that it invites schools and communities to learn about water conservation and Nelson Mandela Bay stated that together with DWAF it has been involved in the promotion of National Water Week, and that in 2005, 3,500 primary school learners visited Water Week stalls erected to promote awareness around water conservation. The municipality also stated that the recent drought in the area led to a huge publicity campaign to encourage people to reduce their water consumption and to promote the efficient use of water. By far the most progressive in terms of water conservation education is the City of Cape Town, which has a water conservation section which promotes education around efficient water usage, and disseminates relevant material in English, Afrikaans and Xhosa. The City’s ‘Hlonipha Amanzi’ campaign is a proactive education awareness campaign run primarily in informal settlements with the aim to ensure that water is not wasted when fully serviced plots are provided, and to deal with issues around wastage prior to them occurring. The City also has a ‘FixIt Leaks Programme’ which targets indigent homes, properties under the value of R100,000, with unusually high water consumption and prioritises the largest-volume users in this category to fix leaks. As

an incentive, it is agreed that arrears will be written off should the owner keep a leak-free property for six months after the repair is complete.

5.8.5. Conclusion and recommendations on WDM It is clear from our research that water leaks and inferior water infrastructure need to be addressed as a matter of priority, as does the issue of ongoing maintenance of infrastructure. Furthermore, water demand audits that provide an analysis of assets and promote engagement with communities need to be undertaken by municipalities in order to understand the complex relationship between long-term supply and demand. Such information needs to form the basis of both FBS and tariff structure formulation, in a way that satisfies ‘green’ and ‘red’ objectives. As the national regulator, DWAF could intervene to assist under-capacitated municipalities to develop appropriate WDM strategies, which ensure that poor households have access to enough water to sustain a healthy and dignified life, and that large consumers like industry, agriculture and hedonistic residential consumers are penalised for their excessive consumption. Water conservation education should be undertaken in all areas, with the ultimate goal to ensure access to adequate and safe water for all and to curb hedonistic water consumption.

5.9. Public Participation Although critical to the issue of equitable water services provision, the debate around the desirability or need for public participation and consultation in water services provision is one that has not been explored extensively in this research (and, to our knowledge, not elsewhere either). One view in this debate holds that the water sector requires such specialised and technical knowledge and expertise that the general public’s participation would be largely ineffective in the planning process. In this view, decision-making regarding water services should be left to the ‘experts’ who understand water reticulation and the intricate management system of the water sector, and thus know best how to deliver water services.

Goldin, J., “It takes two to tango: steps towards change in the water sector.” In Hemson, D., et al (eds.), Poverty and Water: Explorations of the Reciprocal Relationship (London, 2008), p. 52. 134 Ibid., p. 53. 135 Ibid., p. 54. 133

levels of services would be successful given specific contexts and demands of communities.136

5.9.1. Problems with how municipalities currently facilitate public participation

More research into public participation in water services processes is required but it appeared from our research that the main vehicles for public participation – ward committees and input into IDP processes – are often not capable of holding local government accountable and are often ‘rubber stamps’ more than anything else. The predominant trend among the interviewed municipalities (which included Moses Kotane, Madibeng, Albert Luthuli, Dr J.S. Moroka, Blouberg, Msunduzi, Amathole and Stellenbosch) is to confine any attempts to incorporate public participation, to the use of ward committees and the IDP processes. There are problems with both of these vehicles. Ward committees tend to be highly political, reflecting local power and political elites, and

Fault Lines

A preliminary case study report on cross-cutting issues in water services provision, by The Water Dialogues found that municipalities are not clear about the meaning of or the need for public participation, with negative consequences for service delivery.137 The report states that while “call centres are a means for users to register complaints, these differ substantially from communication to communities, and public participation as a two way process.” However, when asked about public participation, municipalities point to them as an indication of their responsiveness to communities.138 In the course of our research we experienced the same responses from local government officials.

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In the other view, public participation is viewed as vital to establishing trust between water services users and the various institutions, which are tasked with delivering these services. It is worth remembering that the apartheid government was characterised by an administration that established exclusionary institutions, including those providing water and sanitation, fostering distrust among the majority of the population who did not benefit from these services. Since 1994, the transformation process of the water sector has largely been a top-down, technocratic one which has entrenched the precedent of skewed privilege and power in access to water resources.133 Without the conscious involvement of communities in the planning, provision and sustainability of water services, the inequalities and exclusionary practices of the water sector will continue to be perpetuated, and water users will continue to distrust and feel alienated from water services institutions and their ‘technicist’ language.134 The interests and concerns of poor and predominately black residents of townships and informal settlements are often overlooked by water management planning forums, which prioritise input from technicians, commercial farmers and local water policy elites amongst others.135 The time burden and effects of poverty are greatly increased for women, as they are forced to fetch water from far and are household caregivers, often to family members with HIV/AIDS, without access to adequate water and sanitation. Input from water users in rural, poor communities, particularly from women who are greatly impacted by poor water accessibility and quality would provide valuable information as to what

See Hemson, D., “Easing the burden on women? Water, cholera and poverty in South Africa”, at note 133. 137 The Water Dialogues, “Preliminary Discussion Document”, at note 53, p. 32. 138 Ibid. 136

Water Services Fault Lines

not providing much voice to marginalised groups, and the IDP processes are overwhelmingly disempowering and technocratic. EThekwini Municipality acknowledged in its interview that ward committees are often not the most effective way for communities to participate in water and sanitation issues. Another problem with these particular structures is the ineffectiveness of the ward councillors to represent and participate meaningfully in water sector planning due to a lack of education, information and context on often technical and complex water sector issues and processes, for example the role and importance of the WSDP. As has mentioned in part 5.6.4, it is often the case that councillors are illiterate and do not have an understanding of their roles, responsibilities or local government mechanisms, which is greatly hindering service delivery at municipal level.139 The IDP process does not seem to offer much more potential for facilitating active participation in the water services arena. Moses Kotane Municipality stated that it uses the IDP process to address the needs of the community, but that meetings held for the IDP are not well attended because they are held during the day and most people live in rural areas and find it difficult to attend. According to the municipality, those who do attend when transport is provided, generally contribute very little. In Lepelle-Nkumpi, each village has a 10 member water committee which reports to the ward councillor who then reports to the Technical Director, who gives a report on all water issues which have been raised by water committees from the villages. This then gets heard at the Water Forum, which reported to the Portfolio Committee and then the District Water Sector Forum (which meets every second month), and is ultimately filtered through to the Mayor and eventually the Premier. In Nelson Mandela Bay the Constituency Office (which facilitates the ward system and liaises with councillors) and the Communications Office (which deals with external communications) together handle public participation in the municipality.

Another aspect of public participation in water services provision is the way in which municipalities deal with complaints and queries from their users. This report does not extensively cover issues around public participation and community involvement in dispute resolution; however we have identified this as an area that requires more in-depth and nuanced research. In terms of lodging a complaint or querying a bill, the approaches that municipalities take differ considerably. In some cases people are able to lodge a complaint online or phone a toll free hotline and be attended to almost immediately, whereas in others people have to make a long and expensive journey to the municipal office in order to make a representation which is sometimes required to be in written form. In Madibeng, we were told that if there is a complaint the community can report it to the appropriate ward councillor or ward committee member, who then reports to the municipality or to the WSP.

5.9.2. Conclusion and recommendations on public participation Municipalities and water institutions must be held publicly accountable, and they should actively incorporate input from communities and water users to this end. Civil society can play an important role in educating and capacitating communities in issues around water and sanitation services, through workshops on topics ranging from water rights to water budget monitoring. The more empowered communities and users are regarding the water sector, the more engagement and debate can occur with the ‘technical experts.’ Indeed, knowledge is a crucial resource for improving participation.140 The input of previously excluded communities needs to be actively and meaningfully incorporated into water policy and implementation, rather than simply existing stagnantly in the vague rhetoric of IDPs and WSDPs, under the politically-correct guise of ‘empowerment’ and ‘participation.’141 Goldin, J., “It takes two to tango: steps towards change in the water sector ”, at note 133, p. 60. 141 Ibid., p. 61. 140

139

Mbanjwa, X., “Municipality literacy shock”, at note 113.

A spin-off of the initiative is that a notable change in the attitudes of technical staff, well-versed in matters of budgeting and engineering, was observed as a result of their increasing interface with ‘ordinary’ citizens. A change in the way technical staff communicated with communities was also observed, with staff attempting to make themselves understood in simple language, and lively debates occurring between the delegates and staff over the latter’s technical criteria and solutions proposed.143 The fact that some information continues to be withheld from delegates in the pretext of technicality, despite attempts to make much of that accessible, remains a problem but at least a dialogue and a 143 space has been opened to interact meaningfully. 142

“Case Study 2 - Porto Alegre, Brazil: Participatory Approaches in Budgeting and Public Expenditure Management.” Social Development Notes, 71 (March 2003), p. 3: http://info.worldbank.org/etools/docs/ library/205481/Porto%20Alegre_English.pdf. 143 Ibid. 142

Fault Lines

An interesting example of local participatory planning used to improve water services access can be found in the Participatory Budget policy implemented in Porte Alegre, Brazil. The model developed in Porte Alegre has since been replicated in 300 municipalities in Brazil and the United Kingdom is looking into implementing a similar initiative. From 1990 to 2005, at the beginning of each year, neighbourhood assemblies set budget priorities and elect 44 members to a Council of Participatory Budgeting, essentially the main participatory institution. This Council then negotiates with the local authority. Budget allocations are made by combining subjective preferences of citizens with the objective quantitative criteria. Between 1989 and 1996, the number of households with access to water services rose from 80 percent to 98 percent and the percentage of the population served by the municipal sewerage system rose from 46 percent to 85 percent.142

More progressive methods to facilitate public participation are used in eThekwini and City of Cape Town, where both municipalities have recognised the problems associated with ward committees and opted for more inclusive and participative methods through the Raising the Citizens’ Voice Project.144 While there are valid criticisms of the actual inclusive participation aspect of these initiatives, they are worthwhile endeavours and undoubtedly an improvement on simply relying on flawed ward committees and IDP processes.145 In order for public participation to be more effective in practice there also needs to be a deconstruction of what is meant by ‘communities.’ While water policies and legislation promote the recognition of different types of water users and stress pro-poor policies, the structures and institutions established to facilitate meaningful participation need to take into account socio-economic differences and recognise that, all too often, the voices and input from the poorest communities are ignored.

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Box 2: Local participatory planning and budgeting in Porte Alegre, Brazil

Msunduzi stated that it has a Raising the Citizens’ Voice Project in development. 145 The City of Cape Town’s Raising Citizen’s Voice Project during 2008 entailed 10 workshops of three hours, conducted in English, Afrikaans or Xhosa in 18 communities, covering a range of topics including citizens’ rights and responsibilities; using water wisely and meter reading; sanitation and hygiene; pollution abatement and water quality; tariffs, billing and affordability. 144

Six Water Services Fault Lines

Conclusion and Recommendations Although the fault lines identified above have been analysed separately, issues around public participation, water quality, credit control, water disconnections, tariff structures, FBS, institutional capacity, financial and technical assistance, backlogs, levels of service, water quality and WDM all feed into each other and speak to the many challenges and constraints currently facing municipalities in providing domestic water services. What was obvious from the interviews with the fifteen municipalities is that, despite recognition of the obligation to provide FBS and facilitate propoor development, there is an underlying antagonistic and paternalistic attitude towards the poor within a prevailing cost-recovery preoccupation. While cost-recovery and social justice concerns are potentially compatible – if water is approached essentially as a public service for poor communities, and as a commercial product (to be bought and sold for profit) for rich households, businesses, industry and agriculture – our research suggests that, mainly as a result of insufficient financial and technical support to municipalities from national government, the balance is firmly tilted in favour of cost-recovery. In an environment of limited national assistance, municipalities are often forced to focus on short-term measures, even if these make no sense developmentally and ultimately cost more in the medium- and longterm. There is a tendency to favour once-off technical ‘solutions’ that appear to reduce administrative and maintenance burdens, such as water restriction devices, rather than trying to find creative and equitable ways to ensure adequate access to water services for all. If water services are to be approached according to DWAF’s 2003 Strategic Framework, i.e. ‘water is life, sanitation is dignity’, then the issues raised by municipalities and discussed in the fault lines above are serious and urgent. It is clear from our research that the goal of universal access to water services will never be achieved within the existing decentralised model. There is a pressing 72

need for much greater involvement, support and oversight from national government. In this respect, current developments towards establishing a national water services regulator are to be encouraged. However, it remains to be seen how effective DWAF will be in its new role as the national regulator, and what other interventions by relevant stakeholders can be made to address these issues and mitigate the problems. In the meantime, and anyway, based on our research we recommend the following: Greater financial and technical support to

municipalities, including funds and deployment of personnel, especially where poor municipalities are under-spending but not reducing their backlogs quickly enough, and where municipalities have limited potential to raise internal revenue through cross-subsidisation with rich water users. National regulation of all water tariffs to ensure ||

equitable reflection of social and environmental justice objectives, and a price cap for the first tariff block/s following the FBW block across all municipalities i.e. to ensure uniformly low tariffs for low consumption and to get away from the situation in which poor people in the poorest municipalities often have to pay higher prices for water than in richer municipalities.

National regulation of credit control practices to

ensure || fair enforcement between different classes of water users, including the establishment of pro-poor policies on disconnections, and || prohibition of PPMs and other pernicious water restriction devices in poor communities. More effective national regulation of water

quality control. Research into consumption, costs and

affordability of water services across low-income households.

Research into ways to effectively cross-subsidise

across bands of domestic water users, including an investigation of elasticity of demand at the different levels of consumption.

Abandonment of using the indigent policy and

SIX

and advance levels of service, including || finalising and implementing an appropriate FBSan policy, and || implementing an adequate per person per day FBW allocation across all municipalities, starting with a national minimum amount of 50 lcd.

Conclusion and Recommendations

Prioritisation of efforts to eradicate all backlogs

Seven

187 936

41 234

67.4

Predominantly rural

Amathole District

Eastern Cape

1 664 482

424 795

63.6

Predominantly Rural

Blouberg

Limpopo

161 322

35 176

73.5

Rural

Cape Town

Western Cape

2 892 243

778 237

23.6

Urban metro

Cape Winelands District

Western Cape

630 493

160 100

22.8

Mixed

Dr J.S. Moroka

Mpumalanga

243 313

54 339

66.0

Predominantly rural

Ekurhuleni

Gauteng

2 478 631

776 470

36.6

Urban metro

eThekwini

Kwazulu Natal

3 090 122

824 371

Urban metro

Lepelle-Nkumpi

Limpopo

227 971

52 928

65.5

Predominantly rural

Madibeng

North West

346 677

100 457

47.2

Predominantly rural

Moses Kotane

North West

237 175

62 940

58.6

Rural

Msunduzi

Kwazulu Natal

552 838

135 329

43.1

Mixed

Nelson Mandela Bay

Eastern Cape

1 005 779

265 375

41.4

Urban metro

Stellenbosch

Western Cape

118 710

35 124

16.8

Mixed

Witzenberg

Western Cape

83 568

20 459

26.8

Mixed

Density Type

Poverty Rate %

Mpumalanga

No. of Households

Albert Luthuli

Population

Province

Appendix 7.1. Basic statistical information for the 15 municipalities Name of Municipality

Water Services Fault Lines

Appendices

Source: The Gaffney Group, Gaffneyâ&#x20AC;&#x2122;s Local Government in South Africa 2007-2008 Official Yearbook. (Johannesburg, April 2007).

f) FBW146

e) %

d) Price/ month to consume 12kl

c) Price/ month for indigents/ poor to consume 12kl

b) Charge per kl for second block (indigents)

a) No. of blocks

Municipality

Appendix 7.2. Indigent vs. non-indigent water consumption

Moses Kotane

R6.88

R41.28

R41.28 100%

*6kl

Madibeng

R3.76

R22.56

R22.56 100%

*6kl

Albert Luthuli

R3.0468

R18.2808

R18.2808 100%

*6kl

Dr J.S. Moroka

R1.60

R9.70 (metered) R15 (non-metered) R3.30 (destitute)

R27.30 (metered) 35% R16 (non-metered) 93%

6kl147

LepelleNkumpi

R4.56

R22.50 (metered) R26 (non-metered)

R57.60 (metered) 39% R67 (non-metered) 39%

Blouberg

R2.51

R15.06

R29.40 51%

6kl (i)

Ekurhuleni

R6.27

R18.81 Free (communal standpipes)

R37.62 (metered) 50% R54 (non-metered) 0%

*6kl 9kl (i)

Nelson Mandela Bay

R4.49

R17.96 (metered) R26.79 (formal unmetered) R13.40 (informal unmetered) R8.13 (communal standpipe or bucket)

R53.88 (metered) 33% 49% 25% 15%

8kl (i)

City of Cape Town

R3.05

Free (effectively 13kl)

eThekwini

R5.45(semi) R8.22 (full)

Amathole:

R49.32 (full pressure) R113.43 (full pressure) 43% R32.70 (semi pressure) R32.70 (semi pressure) 100% Free (low pressure)

6kl148 (i) *6kl149

R4.30 R3.60 R3.20 R4.30 R4.60 R3.50 R3.00

R28.20 R22.00 R19.60 R26.80 R28.40 R22.00 R18.60

R50.20 R41.20 R37.60 R50.80 R52.40 R40.00 R34.20

Appendices

6kl (i) 56% 53% 52% 53% 54% 55% 54%

Msunduzi

2 3

R9.04 (auto) R3.49 (appl)

R54.24 (automatic) R20.94 (applied)

R108.48 50% 19%

*6kl150

Stellenbosch

R3.48

R20.88

R36.60 57%

6kl (i)

Witzenberg

5 2

R3.70 R3.50

R22.20 (uncontrolled) 151 R21.00 (controlled)

R81.10 (uncontrolled) 27% R42.00 (controlled) 50%

6kl (i)

SEVEN

Mbhashe Mnquma Great Kei Amahlathi Ngqushwa Nkonkobe Nxuba

R18.30 0%

*6kl

148 149 150

* = FBW available to everyone; (i) = FBW available to indigents only Dr J.S Moroka: 6kl is provided in the policy but FBW has not been successfully rolled out City of Cape Town: 6kl FBW and R30 grant is provided to indigents which effectively makes it 13kl FBW. eThekwini: 6kl to be increased to 9kl in July 2008. Msunduzi: 6kl FBW is allocated to everyone but the 6kl FBW falls away for non-indigents if they consume more than 6kl per month. 151 Witzenberg: Households with an in-house tap must pay the flat rate of R45.70 per month, however this is waived for those with a communal tap or fixed amount. 146 147

FBSan applicable to whom?

Moses Kotane

Flat rate only charged in two areas R14 and R4.50

Madibeng

Plot size 0 - 300m² = R45.81 300 – 1 000m² = R8.21 (for each additional 100m² or part thereof) 1 000 - 2 500m² = R9.49 (as above) 2 500 - 25 000m² = R4.70 (as above)

Yes, less 20% of sanitation charge (R9.16)

Indigents

Albert Luthuli

Flat rate R85

Sanitation subsidies apparently available

Indigents

Dr J.S. Moroka

Flat rate R20 (full waterborne) R70 (drainage of septic tank) R20 (unmetered)

Lepelle-Nkumpi

3 block tariff structure based on plot size 0 – 500m² = R15 501-1000m² = R20 1000m² and above = R25

R7.50 flat rate (effective 50% subsidy)

Indigents

Blouberg

Flat rate R34.73

Ekurhuleni

6 block tariff structure

Yes, 6kl FBSan

All

0 - 6kl = free 7 -15kl = R3.80 /kl 16 - 30kl = R1.55 /kl 31 - 45kl = R1.45 /kl 46 - 60kl = R1.40 /kl 61kl or more = 0.50 /kl Flat rates for unmetered sewerage disposal system R34.20 ( (consumption less than 15k/month) R64.20 (consumption between 15 – 30kl/ month) R125.40 (consumption exceeding 30kl/month)

FBSan provided and how much?

Domestic sanitation provision (flat rate, plot size, tariff for kl consumed)

Municipality

Water Services Fault Lines

Appendix 7.3. Sanitation provision across the 15 municipalities

A hydraulic sewerage tariff system is used based Yes, 11kl FBSan on the formula P = KVC (where P = Sewerage charge in rand, K = Effluent discharge factor, V = Metered volume of potable water utilized and C = Prescribed charge). K is different for consumer categories (K = 0.6 for single residential and small multiple dwellings; K = 0.95 for larger multiple dwellings). The prescribed charge (C) for 2007/2008 is R6.26 / kl (incl. VAT). V is a minimum of 11 kill and a maximum of 50 kill for single residential and multiple dwellings. For 2007/2008 the charge for unmetered potable water supply in a formal structure is R41.32 per month, for an informal structure with waterborne sewerage it is R41.32 per month (incl. VAT) and the bucket system is R69.99 per month (incl. VAT).

Indigents (those on ATTP policy)

City of Cape Town

Fixed charges for sanitation based on the Yes, 4.2kl FBSan municipal value of property. All properties with a municipal value of less than R100 000 and informal settlements do not have a fixed charge. 0 - 4.2kl = free 4.2 - 8.4kl = R3.78 /kl 8.4 - 28kl = R8.04 /kl 14 â&#x20AC;&#x201C; 28kl = R8.79 /kl 28 â&#x20AC;&#x201C; 35kl = R9.23 /kl

Indigents

Domestic clusters (multi residential unit developments) are provided with 4.2kl free sanitation (on provision of an affidavit stating number of units) and thereafter the tariff is R9.10 /kl. eThekwini

Property value

Those with property Those who qualify value less than R36 000 receive free sewerage. A system of rising block rebates is granted to properties valued between R36 000 and R100 000.

Amathole

5 block tariff structure for kl consumed per month

Yes, 6kl FBSan

SEVEN

Appendices

Nelson Mandela Bay

Those at RDP or lower level of service or those registered as indigent

Water Services Fault Lines

Msunduzi

Fixed charge R76.37 tariff and a basic charge of R38.18

Free sewerage for automatic indigents. Applied indigents receive a reduced sanitation tariff.

Automatic and applied indigents

Stellenbosch

Fixed charge based on plot size

Yes, 6kl FBSan

Indigents

1 - 250m² = R497 251 – 500m² = R638 and 100m² blocks up to 1000 which is R1037.59 with R100 for every additional 500m². Witzenberg

Fixed monthly charge is R14.70 for septic tanks Basic monthly and R92.50 for full waterborne service. VIP charges for water level of service is free. and sanitation are subsidised.

Indigents

Marc Dettmann This report presents the findings of a survey of water services across 15 South African municipalities, conducted by the Centre for Applied Legal Studies (CALS), the Centre on Housing Rights and Evictions (COHRE) and the Norwegian Centre for Human Rights (NCHR). The research findings reflect systemic obstacles to the provision of universal access to water services across the country, thus compromising everyone’s water and sanitation-related rights. The report outlines some key recommendations to overhaul water services delivery in South Africa, around cross-cutting ‘fault lines’ which include: eliminating backlogs and improving levels of service; Free Basic Services (FBS); indigent policy as the FBS targeting mechanism; tariff structures; credit control enforcement – water disconnections and restriction devices; financial and technical assistance; water quality; water demand management; and public participation.

DJ du Plessis Building, West Campus, Wits, Braamfontein Private Bag 3, Wits University 2050 South Africa Tel: + 27 11 717 8600 Fax: + 27 11 717 1702 www.law.wits.ac.za/cals

Right to Water Programme 83 rue de Montbrillant 1202, Geneva, Switzerland Tel: + 41 22 734 1028 Fax: + 41 22 733 8336 www.cohre.org/water

South Africa Programme PO Box 6706, St. Olavs Plass, NO-0130, Oslo, Norway Tel: + 47 22 84 20 01 Fax: + 47 22 84 20 02 http://www.humanrights.uio.no/english/