17 November 2021
Section 27(1)(b) of the Constitution provides that “everyone has the right to access to sufficient water…”. To give effect to this right parliament enacted the Water Services Act 108 of 1997. To understand the legal effect of section 27(1)(b) we must determine what “access” and “sufficient” means in this context. We look at international jurisprudence to define access as per the Constitution's instruction in interpreting the Bill of Rights.
Access to water implies there should be physical and economic accessibility. Physical accessibility means that water should be available within a distance accessible to everyone. There should be adequate infrastructure and the effective maintenance of facilities and equipment. Economic access refers to the financial costs associated with accessing water.
The problem that many municipalities are facing regarding the water crisis is the failure regarding the first pillar of accessibility. Water is not physically accessible. Effective maintenance has seen a significant failure, and this is the reason we are without water. For example, Matjhabeng Municipality contracts Sedibeng Water for the performance of its obligations under Section 27(1)(b), however, due to the arrear accounts, the finances needed for Sedibeng Water to effectively maintain facilities and equipment are absent.
Another topic of discussion is whether the water board can cut your access to water as a residential consumer. Section 31(3) of the Water Services Act gives the water board the power to “….limit or discontinue water services or other services provided to water services institutions, consumers or users.” So, therefore, the water board does have this authority. However, they are specifically imposed with the following obligations in performing their duties (a) striving to provide efficient, reliable and sustainable water services; (b) optimally using available resources; (c) striving to be financially viable; (d) promoting the efficiency of water services authorities; (e) taking cognizance of the needs of water services institutions, consumers and users.
In Mazibuko and Others v The City of Johannesburg and Others  ,the Constitutional Court set aside an order from the Supreme Court of Appeal wherein the SCA ruled that cut-off in water supply that occurs when the free basic water limit had been exhausted, constituted an unlawful discontinuation of the water supply. Meaning, that the Con Court did not agree with the ruling that this cutting off of the free basic water was unlawful. It is important to note that the free basic water supply is defined by the Con Court as “the prescribed minimum amount of water necessary for the supply of a sufficient quality of water to support life and personal hygiene”.
What you should take away from this commentary is the following:
- Your right to access of water is enshrined in the Bill of Rights.
- If your accessibility to water has been hampered, there is infringement on your constitutional right.
- The Water Board may cut off your water supply.
- The cutting off of water once the basic water supply has been exhausted is not unlawful, nor unconstitutional.