Abstract

Keywords

Right to water; emergency water supply; COVID-19; municipal budgeting; corruption.

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On 30 January 2020 the World Health Organisation (hereafter the WHO) declared the outbreak of coronavirus disease 2019 (hereafter COVID-19) to be a public health emergency of international concern. This is the WHO's highest level of alarm.1 Six weeks later, on 15 March 2020, South Africa declared a national state of disaster in terms of section 23(1)(b) of the Disaster Management Act 57 of 2002. The importance of access to water emerged early in the pandemic as an integral part of combatting the spread of COVID-19, as frequent handwashing is one of the key preventative measures recommended by both the WHO and the National Institute for Communicable Diseases.2

The COVID-19 pandemic has reminded everyone living in South Africa of the widespread lack of access to adequate water and sanitation, particularly in informal settlements and rural areas,3 and how this disproportionately impacts on poor, predominantly black communities. It catalysed an emergency response from South Africa's Department of Water and Sanitation (hereafter the DWS). This article examines the nature, extent and effectiveness of that response.

By way of background, part two below gives a brief overview of how water services provision is regulated in South Africa while part three highlights the disjunct between the theoretical promise of the legal framework and the lived experience of poor people living in South Africa. Part four describes the key features of the DWS' COVID-19 response to contextualise part five, which examines: a) the need for a reliable monitoring system; b) the future repercussions of the DWS' response with reference to the twin challenges of further reduced municipal revenue and redirected funds; and c) the legal

implications of a cessation of the emergency water supply down the line. Finally, some concluding remarks are provided in part six.

The article was compiled using desktop analysis of relevant legislation, caselaw and secondary sources. In addition, the authors conducted a quantitative analysis of data contained in a report of the Auditor-General on the financial management of the South African government's COVID-19 initiatives4 (hereafter the AG's Report) and in press releases issued by the DWS. The analysis was conducted at a time when the circumstances of the pandemic changed daily, and the relationships between COVID-19, water, inequality and resilience were still emerging.

Nevertheless, its purpose is to contribute to the growing body of knowledge on the effects of COVID-19, and to provide evidence and perspectives to guide a post-COVID-19 transition from emergency to routine water services provision. In addition, COVID-19 will not be the last crisis requiring urgent water provision in difficult conditions. The impacts of climate change (particularly around increased water scarcity) will present challenges to the state's ability to provide water in the future.5 By analysing the DWS' response to COVID-19, this article therefore seeks to distil lessons which can be applied to water-provision challenges to come.

2 Overview of the regulatory system for water services provision

Shortly after South Africa's transition to democracy, between 12 and 14 million people living in the country (out of a total population of around 40 million) were without access to a basic water service.6 The vast majority of these were black people.7 Areas without access to water services were located primarily in the former homelands and in informal settlements, and thus mirrored apartheid spatial injustice.8 Achieving equitable and universal access to water was therefore particularly important at the dawn of democracy given the drive to redress deeply rooted historical inequalities,

and to further the developmental objectives that underpinned post-apartheid socio-economic reconstruction.9

To this end, a rigorous framework of laws, policies and programmes has been put in place since 1994.10 This framework is guided by the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), which is the supreme law in South Africa.11 Section 27(1)(b) of the Constitution provides that everyone has the right to have access to sufficient water,12 while section 27(2) obliges the state to:

… take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation

of the right of access to sufficient water.

As with all rights in the Bill of Rights, the state must respect, protect, promote and fulfil the right to water.13 Although a full discussion of the nature of the right to water is beyond the scope of this article,14 it is worth noting that the right places both positive and negative duties on the state.15 This is because the nature of these duties is relevant to the later discussion16 of the state's obligation to refrain from interfering with any existing right of access to water in the context of a post COVID-19 transition from emergency to routine water supply.

There are two key pieces of legislation designed to give effect to the right to water in South Africa: The National Water Act 36 of 1998 (hereafter the NWA) and the Water Services Act 108 of 1997 (hereafter the WSA). The

NWA provides the legal framework for water resource management.17 It provides that national government acts as the custodian of the nation's water resources18 and must therefore ensure that water is protected, used, conserved and managed in a sustainable and equitable manner.19 As a complement to the NWA, the WSA facilitates water services delivery. Section 3 of the WSA confirms a right of access to a basic water supply and requires every water services institution20 to take reasonable measures to realise this right.

The Constitution, the NWA and the WSA work together to place a duty on all three spheres of government to collaboratively realise the right to water.21 Local government is given the critical task of ensuring that water is provided to the people.22 In doing so, municipalities are required to ensure the provision of services to communities in a sustainable manner and to

promote social and economic development.23 They must also structure and manage their administration, budgeting and planning processes to give priority to the basic needs of the community.24 Further, municipalities must ensure that all members of the local community have access to at least the minimum level of basic municipal services.25

As part of government's attempted poverty-alleviation strategy, the Free Basic Water Policy (hereafter FBWP) was introduced in 2001, together with a set of regulations which set the national minimum standard for basic water supply as follows:

a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household per month at a minimum flow rate of not less than 10 litres per minute, within 200 metres of a household; and with an effectiveness such that no consumer is without a supply for more than seven full days in any year.26

Whether or not this standard (hereafter Regulation 3(b)) amounts to "sufficient" water in terms of section 27(1)(b) of the Constitution has been the subject of much contestation,27 including in Mazibuko v City of Johannesburg,28 where the Constitutional Court upheld the standard.29 Regulation 3(b) has subsequently been enforced by the High Court in cases like Nokotyana v Ekurhuleni Metropolitan Municipality30 and Mtungwa v Ekurhuleni Municipality.31

In September 2017 a new set of National Norms and Standards for Domestic Water and Sanitation Provision was published32 (hereafter the

2017 Norms and Standards). The 2017 National Norms and Standards go further than the 2001 version, for example, by requiring free basic water supply to include a yard connection and by specifying that this infrastructure be maintained by the Water Services Authority.33

In summary, South Africa's legislative and policy framework for water services includes a constitutional right to water, a network of legislation and a national FBWP designed to give effect to this right. Within this framework water is conceived of as a social good and a vital part of the broader developmental project which continues to respond to systemic inequality.

However, despite this regulatory framework, the majority of the population including the poor, unemployed and marginalised (who are typically black), still struggle to access sufficient water.34 In May 2020 the DWS confirmed that 12% of the population do not have access to even a basic water supply.35 It is of great concern that the 2019 National Water and Sanitation Master Plan reports that twenty-six years after South Africa's transition to democracy, the percentage of the population receiving reliable water services is lower than it was in 1994.36 While more homes in total have water now, as a percentage of all homes, fewer homes have water now than at the end of apartheid.37

Many of the challenges associated with water services provision relate to the state of local government, as it is municipalities which serve as the frontline for communities seeking access to water. South African local government is plagued by financial mismanagement and poor governance, resulting in widespread failure to realise socio-economic rights.38 While multiple factors contribute to this, the poor and deteriorating state of municipal finances and financial mismanagement are critical. The reality of systemic municipal failure must be recognised at the outset, as this provides important context for the analysis in part 5.

In the period 2017-2019 more than thirty municipalities received either a disclaimer or an adverse audit outcome, or failed to submit their financial statements on time - or a combination thereof.39 In a National Treasury briefing to the National Council of Province's Finance Committee in October 2019 it was confirmed that 51% of municipalities had overspent their operating budget and the number of municipalities in financial distress had increased from 95 in 2012/13, to 125 in 2017/18, which amounted to almost half of all municipalities in the country.40 The systemic nature of financial mismanagement at local government level is also evident in the increasing numbers of municipalities placed under provincial administration in terms of section 139 of the Constitution.41

Without sufficient funds and the ability to responsibly manage them, many municipalities are failing to fulfil one or more of their core functions: to deliver services such as water, sanitation and electricity, and thereby to realise the socio-economic rights of the people living under their jurisdiction. Ensuring equitable and sufficient access to water thus remains one of the most crucial challenges in democratic South Africa. The COVID-19 pandemic is taking place in the context of a significant disjunct between the theoretical promise of the legal framework and the lived experience of poor people in South Africa.

4 Overview of the DWS' COVID-19 response

This section describes the key features of the DWS' COVID-19 response. It is deliberately descriptive as opposed to analytical as its purpose is to contextualise the critique of DWS' COVID-19 response which follows in part five.

Following the declaration of a state of disaster, the first set of regulations issued in terms of section 27(2) of the Disaster Management Act empowered the Minister of Water and Sanitation to issue directions within her mandate to address, prevent and combat the spread of COVID-19.42

Exercising this power, Minister Lindiwe Sisulu issued directions on 15 April 2020 (the COVID Water Directions).43

The COVID Water Directions established a National Disaster Water Command Centre (hereafter the Water Command Centre) to assist with the roll-out of an emergency water and sanitation intervention.44 The task of the Water Command Centre was to provide water tanks to vulnerable communities, as well as tankers to fill the tanks with water.45 Emergency tanks are not a feature of South Africa's routine water supply system because they provide a small amount of water of unreliable quality at great expense at a shared water point. This is a low level of service that is both logistically difficult and expensive to maintain. Nevertheless, emergency tanks have formed the cornerstone of the DWS' COVID-19 response.

The Water Command Centre was based at and coordinated by Rand Water46 in return for a management fee.47 It was staffed by representatives from various water boards, as well as officials from the DWS and municipalities.48 The COVID Water Directions also tasked Rand Water with emergency procurement, which was done through the Water Command Centre.49 The regulations thus effectively centralised emergency procurement and water provision.

The DWS, through Rand Water, then proceeded to procure water tanks. These tanks were owned by the Department although it seems that the plan is for ownership of the water infrastructure set up during the pandemic to be

transferred to municipalities.50 Once tanks had been procured they had to be delivered and installed (which involves building a concrete base and cementing in the tank).51 The arrangements as to who was responsible for delivery and installation varied from province to province.52 For example, Rand Water was responsible for the delivery and installation of tanks in Gauteng and Mpumalanga.53 In other provinces, other water boards and municipalities were responsible for installation.54 Municipalities were tasked with ensuring that the tanks were not stolen or vandalised.

To get the tanks filled, the idea was that initially the DWS (again through Rand Water) would be responsible for arranging tankers to fill the tanks. In time this responsibility would be transferred to municipalities. In total, Rand Water appointed 28 different service providers to provide water tankers to fill the tanks.55

The process of the delivery and installation of the tanks did not always go smoothly. In some instances, where municipalities were responsible for installation they struggled to access materials from hardware stores which were closed as part of the national lockdown.56 Subsequently the Minister of Trade and Industry was requested to declare hardware stores an essential service.57 However, considerable delay had already been caused to the rollout of emergency water supply.58 Additionally, the infrastructure was vandalised in certain areas. For example, the DWS intervened after allegations of vandalism of water tanks installed in Alfred Nzo Municipality in the Eastern Cape59 and two water tanks in Orange Farm, Gauteng were

reportedly set alight.60 In addition, water from a tanker was dumped near Pongola in KwaZulu-Natal on 29 July 2020.61

On 31 August 2020, Rand Water demobilised "its operations as part of the National COVID-19 Emergency Water Supply Projectʺ.62 Rand Water's press statement announcing this development is opaque as to the reason for it, but seems to suggest that it was too expensive for the DWS to have Rand Water continue in this role.63 The demobilisation of Rand Water's operations meant that water tanker service providers contracted by Rand Water ceased activity on 31 August 2020.64 Filling the tanks has now become a municipal responsibility.

DWS' COVID-19 response thus centralised emergency procurement with Rand Water responsible for procuring both water tanks and contractors to fill the tanks using water tankers. Rand Water also delivered and installed tanks in some areas, while in other places this was done by other water boards or municipalities. This splitting of functions, and particularly the fact that in some areas it was municipalities who were responsible for delivery and installation, is significant for the analysis of the monitoring data in part five. With Rand Water's involvement in the emergency water supply ending, responsibility has been placed on municipalities to pick up where Rand Water left off.

With this outline of DWS' COVID-19 response in place, this section analyses the effectiveness of that response across three themes. First, the need for an effective monitoring system for the rollout of tanks and tankers is discussed. Second, the repercussions of the DWS' COVID-19 response for future water services provision in South Africa is examined. Third, the legal

implications of a future withdrawal of water provided as part of the DWS' COVID-19 response is considered.

The significance of this analysis lies in the fact that the COVID-19 pandemic can be seen as a precursor to continued challenges in water services provision, which are being catalysed by climate change. Kotze has argued that one of the most significant impacts of climate change in South Africa will be on water resources, and that this:

… will have a very palpable effect on (a) the ecological aspects of the resource, specifically with respect to water quantity and quality; and as a consequence of the latter, (b) the manner in which water will be provided to people, especially with respect to the poor.65

The purpose of this section is therefore to distil lessons which might be useful as South Africa hones its plans for water services provision in the context of climate change.

The COVID-19 pandemic required the DWS to design and implement an emergency water provision intervention of significant scale. To better understand questions of scale, this section examines the available data on emergency water provision in the AG's Report, DWS press releases and reports by the DWS to the Parliamentary Portfolio Committee.

According to the AG's Report, by 31 July 2020 the Water Command Centre had spent R237,49 million on emergency water supply.66 The map and table which follow67 provide insights into both where the money was spent, and what it was spent on.

Figure 1: Emergency water supply expenditure per province

Figure 2: Breakdown of funds spent on emergency water supply

This data shows a concentration of COVID-19 water expenditure in Gauteng (35% of total spending). This is to be expected given that much of Gauteng

is densely populated68 and it is the province with the largest population.69 Extrapolating from these provincial characteristics, one would have expected the province with the second largest expenditure to be KwaZulu-Natal (which has both the next largest population70 and the next highest population density).71 However, KwaZulu-Natal received only 10% of the total emergency water supply expenditure - less than Mpumalanga and equivalent to the North-West, both of which trail far behind in terms of population size and density.72

It is also important to highlight that the data provided to the Auditor-General by the DWS do not always correlate with either the claims made in the DWS' press releases or in its presentations to Parliament. The table below has been compiled by the authors to compare the data provided by the DWS to the Auditor-General with that contained in the DWS' press releases.

Figure 3: Numbers of tanks and tankers provided

The blocks shaded in orange reflect where the press release claims exceed the figures which the Auditor-General was able to verify on the basis of the information provided to his office by the DWS. The largest of these discrepancies is in the Eastern Cape, where the press release claim is 44 times bigger that the Auditor-General's figure. From the blocks shaded in red it can be seen that in its press releases the DWS claim to have delivered/allocated 16 756 tanks whereas the Auditor-General was able to verify only 6107 tanks as having been delivered.

Note, however, that some DWS press releases make claims about tanks delivered and others about tanks allocated. This may explain at least some of the discrepancies with the AG's Report as that Report focusses on tanks delivered. The higher numbers in the press releases may therefore refer to tanks which had been allocated but not yet delivered. Nevertheless, even if that is the case, it suggests that 10 649 tanks (16 756 – 6 107) had been allocated but not delivered, which raises the question why so many tanks were languishing in a central depot when the need for water was so urgent. It also raises a further set of questions around how urgency was determined – who identified which municipalities needed tanks, how many, and on what basis?83

Of additional concern is that on 20 April 2020, in a report to the Parliamentary Portfolio Committee, the DWS claimed that 18 875 tanks had been allocated, 14 737 had been delivered, and 7698 had been installed.84 This means that while the DWS officially claimed to have delivered 14 737 tanks, the Auditor-General was able to verify the delivery of only 6107, leaving 8630 tanks unaccounted for. Furthermore, the parliamentary report was delivered in April 202085 while the AG's Report covers the period up until the end of July 202086 which means that the numbers in the AG's Report should be expected to be larger than those in the earlier report to Parliament.

In addition to these discrepancies, the DWS also failed to meet its own targets. At the beginning of the national lockdown the DWS set its goal as the provision of 41 000 tanks.87 On the basis of the Auditor-General's data,

by the end of July 2020 it seems that the DWS had provided about 15% of that target.88

At best, these discrepancies suggest that the DWS has not managed to keep a credible, consistent record of what tanks were delivered and where. This is confirmed by the AG's Report, which paints a bleak picture of erratic record-keeping and unreliable data where,

[t]he basic recording and accounting processes implemented at the inception of the initiative which are necessary to maintain a full register of all tanks purchased and delivered, were not implemented.89

The AG's Report concludes that:

Due to the outstanding information, we were unable to confirm whether the reporting of the actual number of tanks delivered and installed, was indeed accurate and complete. Therefore, we cannot determine how the [Water Command Centre] ensured an efficient reporting process. This casts significant doubt on how the expenditure incurred was linked to the tanks procured and installed – ultimately raising a risk in terms of whether the services had been delivered.90

The state's data was not reliable. Civil society and citizen-based monitoring pointed to significant shortfalls in emergency water provision, particularly in informal settlements. At the beginning of the national lockdown several civil society organisations launched the Asivikelane initiative, which was designed to give voice to informal settlement residents faced with severe shortages of basic services during the COVID-19 crisis.91 Asivikelane publishes weekly information based on responses it receives from informal residents themselves to a set list of questions regarding access to water, clean toilets and waste removal.92 A full analysis of government claims as compared to the information collated by Asivikelane is yet to be done, and at the time of writing, Asivikelane's monitoring information came from settlements in only fourteen municipalities.93

The question is why government has not generated reliable, publicly accessible monitoring data. The lack of a reliable baseline points to weak and inconsistent monitoring of basic services in informal settlements prior to the pandemic. Reliable, accessible monitoring data is a critical component of accountability, including against government's own targets. At the beginning of lockdown, the DWS promised that:

[o]n a daily basis, the Department will update all relevant stakeholders on progress made to ensure that the process is not only inclusive but is transparent.94

The Acting Director-General of the DWS also referred to an app that had been developed internally and which was being used to monitor the delivery of tanks and tankers.95 Based on the desktop inquiry followed in this article, it seems that neither of these promises has materialised.

It is also not the DWS alone which is implicated here. The DWS would have relied on municipalities to provide it with data, especially in areas where municipalities took responsibility for delivering and installing water tanks. The absence of reliable monitoring data thus also speaks to a failure of inter-governmental cooperation.96

The significance of a lack of reliable monitoring data lies further in the fact that the absence of such data makes it difficult for both civil society and other parts of government (such as the Auditor-General or National Treasury) to hold the DWS accountable. Accountable government is a key feature of South Africa's constitutional dispensation.97 In relation to water services provision, accountability mechanisms are particularly important because the water sector is currently trying to recover from years of corruption.

The DWS estimates that in the 10 years from 2010-2020, R31 billion was lost to irregular and wasteful expenditure.98 In response Minister Sisulu has instigated a largescale clean-up operation. In her budget speech to Parliament on 23 July 2020 she indicated that 97 officials had already been found guilty of being involved in irregular and wasteful expenditure by internal disciplinary structures.99 In addition the Acting Director-General established a Stabilisation Committee which is investigating an additional 166 cases arising from the Auditor-General's reports over the years.100

Investigations have also been launched into several water boards including Amatola Water, Lepelle Northern Water Board and Sedibeng Water.101 The CEOs of Lepelle and Amatola have been suspended and disciplinary processes against them have been instigated.102 Both these Water Boards were placed under ʺcaretakershipʺ and executive caretakers were appointed to fulfil the responsibilities of a CEO.103 The interim board of Amatola was disbanded in early May 2020.104 This upheaval at the water boards is important to note because several water boards, including Sedibeng and Amatola, were involved in emergency procurement during COVID-19.105

The urgency with which communities lacking adequate access to water needed to be provided with water during the COVID-19 pandemic necessitated the use of emergency procurement processes to procure the necessary tanks and tankers quickly. While implementing emergency

procurement measures was a necessary part of the DWS' COVID-19 response, given the culture of corruption which permeated both the DWS and many water boards, emergency procurement was always going to be risky.

In the words of the Auditor-General's Report:

Emergency responses and quick actions are required to save lives and livelihoods, but the easing of controls and the streamlining of processes and procedures to respond to crises expose the government to the risks of the misuse or abuse of public resources. The multibillion rand relief package was introduced into a compromised control environment. We have been reporting on and warning about poor financial management controls, a disregard for supply chain management legislation, an inability to effectively manage projects and a lack of accountability in many of the government sectors that now need to lead or support government's efforts.106

From the outset National Treasury issued a series of instructions on how emergency procurement should be managed during the pandemic.107 It does seem that the DWS attempted to put some safeguards in place. For example, the COVID Water Regulations confirm that emergency procurement is still subject to both the Public Finance Management Act 1 of 1999 (PFMA) and the Local Government: Municipal Finance Management Act 56 of 2003.108

This is significant because the PFMA contains several tools with which government officials can be held accountable. For example, section 51(e) provides that Accounting Authorities must take effective and appropriate disciplinary steps against any employee of a public entity who contravenes or fails to comply with the provisions of the PFMA. Furthermore, regulation 5 of Government Notice 464 issued by the DWS on 16 April 2020 requires that a national procurement officer be appointed to preside over all emergency procurement, and that details of these transactions be made public immediately after the end of lockdown.109

However, the effectiveness of these checks and balances during the COVID-19 pandemic is questioned in the AG's Report. At the time of writing,

allegations of the abuse of emergency procurement were already surfacing. For example, in May 2020 City Press reported that an audio recording in which the provision of emergency relief to the Qwa Qwa region was discussed, allegedly captures Thami ka Plaatjie (Chairperson of the Ministerial Water Services Advisory Group) as saying ʺ[w]e can all share the slice because it is a lot.ʺ110

Other less stark examples of non-compliance with checks and balances include Rand Water's inconsistent compliance with procurement procedures such as not always making sure that a signed declaration of conflict of interest form was received before appointing a service provider to supply water tanks or tanker services.111

Water tanks are far more portable than permanent water infrastructure and therefore easier to lose track of. This concern is noted by the Portfolio Committee, which indicated that the use of water tanks is susceptible to corruption, and is further borne out by the discrepancies highlighted in figure 3 above.112

The need for emergency procurement during the COVID-19 pandemic was clear. Emergency procurement procedures should be more efficient and streamlined than procurement procedures ordinarily are, but checks and balances are critical, even in a state of disaster. This is particularly important in light of the corrupt practices that have plagued the water sector. Ordinarily a robust monitoring system forms part of this system of checks and balances and serves as a safeguard against corruption. Unfortunately, the DWS' failure to collate reliable monitoring data has made it difficult to conclusively ascertain whether and to what extent there has been corruption in the procurement of emergency water tanks and tankers during the COVID-19 pandemic.

The absence of reliable monitoring data also cripples the ability of any sphere of government to make informed, evidence-led decisions, to respond to early warning signs, and to take corrective action. It is also profoundly damaging to public trust. The need for monitoring data, especially during a time of crisis, is therefore one of the key lessons to be learned as South

Africa readies itself for the challenges of water services provision in the context of climate change.

A second aspect of emergency water provision to examine with the climate change context in mind, is the impact of the DWS' COVID-19 response on the state's ability to realise the right to water going forward. In this section these longer-term consequences are discussed with reference to the challenges associated with further reduced municipal revenue and redirected funds.

As discussed in part three above, systemic financial mismanagement and poor governance are significantly undermining local government's ability to fulfil its constitutional and legislative obligations vis-à-vis the right to water. The challenges faced by municipalities when attempting to collect revenue for services, including water, are well documented.113 While these are not new challenges, they have now been exacerbated by the effects of the COVID-19 pandemic.

The economic impact of the national lockdown in South Africa has been severe. According to the NIDS CRAM survey,114 at least 3 million people have lost their jobs and a 5-10% decrease in GDP was projected. In this context, consumers' ability to pay for services during lockdown became a key concern. Municipalities heeded calls from both the South African Local Government Association (SALGA)115 and civil society organisations116 to

stop disconnections, but themselves received no relief from Eskom or bulk water services providers (water boards).117

The economic impact of the lockdown has meant that less municipal revenue could be generated from ratepayers who were struggling to pay property rates and service charges. At the same time there is some evidence that demand for, and the usage of, municipal utilities increased due to the lockdown,118 and that numbers of indigent households (who are entitled to receive the free basic water allocation in terms of the FBWP) also increased.119 The overall result has been the compounding of existing municipal financial vulnerabilities.

During a presentation to Parliament's select committee on the 2020/21 Division of Revenue Bill in May 2020, SALGA projected a 5% drop in rates payments which would cost local government an estimated R14 billion.120 While National Treasury set aside R20 billion in the Disaster Management Relief Fund to support municipalities, available from July 2020,121 the extent to which this has helped is unclear. Given the central role played by municipalities as Water Services Authorities in South Africa, further reduced municipal revenue is likely to significantly undermine the ability of local government to fulfil its constitutional and legislative obligations to provide water (and other services) going forward.

An emergency COVID-19 water response had to be funded. To unlock resources to fund the provision of emergency water tanks and tankers, the DWS redirected more than R300 million from the Regional Bulk Infrastructure Grant (RBIG).122 The RBIG is a targeted capital grant used for

regional bulk water supply and sanitation infrastructure.123 This redirection of funds reduced by two thirds the funds available to maintain and refurbish wastewater treatment plants and other essential infrastructure.124 The effect of this decision was to delay significantly the upgrades needed to repair and restore water supply in Makhanda in the Eastern Cape and in Giyani in Limpopo, to name but two examples.125

As early as in April 2020 SALGA noted municipalities' concerns about the sustainability of the emergency water supply in a presentation to the CoGTA Portfolio Committee. It noted that the DWS' provision of emergency tanks had made an enormous impact on previously unserved communities, but that this had also created expectations in communities which extended beyond COVID-19.

SALGA therefore highlighted that:

Continuing this programme over many months will divert limited funding available from the provision of reliable and sustainable solutions. Given municipal existing constraints, it is likely that once emergency funding has dried up, the tanks will not be serviced and will stand empty. There is an urgent need to move rapidly to exit the current emergency response and move into the next phase of the programme. The focus must shift to sustainable solutions – a programme to support WSAs to provide and sustain water services both technically and financially. As a result, the DWS may have no option but to seek expensive loan finance to refurbish bulk infrastructure, which is concerning given the ways in which loan finance has contributed to policy capture and crippling debt in many countries.126

Encouragingly, the DWS refers to phases in its emergency response127 and promises that the redirection of these resources will be addressed after the

immediate emergency response, through a post-disaster recovery plan (phase two) followed by rehabilitation (phase three). It is critical that this is carried through.

While no-one denies the importance of the need to provide emergency water in response to COVID-19, the ripple effects of this kind of budget reallocation could profoundly restrict the government's ability to realise the right to water in South Africa in the long term. It is therefore essential that the focus on emergency interventions in this period of disaster does not neglect or undermine the institutional, financial, operational and maintenance systems required to provide effective, affordable, sustainable services going forward.

The combination of the pandemic itself, the economic effects of the national lockdown necessarily imposed in response to it, and the way in which the DWS' emergency water response was designed and implemented, has without doubt compounded the existing financial challenges faced by both national and local government. In the process, the resources available to facilitate the resumption of routine, sustainable municipal water services, have been severely depleted.

The third theme of the analysis presented here concerns the legal implications of withdrawing access to emergency water in the future. While COVID-19 seems to be here to stay, at least for the moment, it is nevertheless important to focus on planning for how the emergency response will transition to routine water services once more.

As outlined in part two above, the state's obligations with respect to the right to water include a negative obligation to respect the right to water. Legally, discontinuing emergency water supply constitutes an interference with existing access to water and may therefore constitute a contravention of this obligation. The courts have in the past found disconnecting a pre-existing water supply to be a breach of section 27(1) of the Constitution, and that while the WSA foresees at least the possibility of disconnection, if the person receiving water is unable to pay, their access to water may not be cut off.

In Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 6 BCLR 625 (W) the High Court held that the obligation to respect entails that the state may not take measures that result in the denial of

access. For this reason disconnecting a pre-existing water supply was found to be a breach of section 27(1). The Court noted that while the WSA allows a water service provider to set conditions under which water supply may be discontinued, the procedure to discontinue must be fair, equitable, provide reasonable notice and an opportunity to make representations. Furthermore, where someone proves to the water service provider that they are unable to pay, their water service may not be cut off.128 A similar approach was adopted by the Supreme Court of Appeal in City of Cape Town v Strümpher 2012 4 SA 207 (SCA).

Nevertheless, the right to water in section 27 of the Constitution is subject to the qualifier that the state need only take reasonable measures within its available resources to progressively realise the right.129 With this in mind, it may well be considered reasonable for emergency water supply to be suspended after the pandemic, provided of course that ordinary water services can then resume. Any infringement on section 27 can of course also be argued to be reasonable and justifiable in terms of the limitations clause in section 36 of the Constitution.130

However, as discussed in sections 5.1 and 5.2 above, the institutional capacity of both municipalities and the DWS to provide water services, already on shaky ground prior to the pandemic, has been severely undermined by COVID-19. Thus, even if the legal arguments for the continuation of emergency water supply post the pandemic succeed, it seems unlikely that the state will in practice be able to continue this service in the context of dwindling municipal revenue.

Prior to the COVID-19 pandemic, water services provision in South Africa was characterised by a comprehensive regulatory framework which faltered

in its implementation. This was particularly so given the large role given to municipalities, many of whom are struggling to fulfil their constitutional and legislative water services delivery obligations in the face of systemic municipal collapse, driven largely by financial mismanagement and poor governance. Even at national level, the DWS was struggling to recover from many years of corruption in both the national department and various water boards.

As is so often the case, the people who bear the brunt of these government failures are those most in need of government support. Historical inequality in water services provision has unfortunately persisted well into the democratic era, and it is precisely these inequalities which COVID-19 has now deepened. While access to water has been a critical part of protecting against infection, many poor people living in informal settlements and rural areas have not had access to the quantities of water necessary to sustain frequent handwashing. The DWS has implemented an emergency COVID-19 response in an attempt to confront these challenges. This response has taken the form of the provision of water tanks and tankers to fill them, both procured through Rand Water at the Water Command Centre. This provision of emergency water supply no doubt brought welcome relief to the areas which benefitted from it.

Nevertheless, the DWS response can be critiqued in several ways. First, the DWS has failed to collate reliable monitoring data. There are perturbing discrepancies between the claims it has made to the Auditor-General, in its press statements, and in its reports to Parliament. Reliable data is the cornerstone of an effective monitoring system. Its absence has thus undermined the ability of both civil society and the relevant arms of government to hold the DWS to account. Given the importance of accountability, even in the context of emergency procurement, or perhaps particularly in those circumstances, this is an unfortunate failure on the part of the DWS. In addition to hampering accountability measures, an absence of reliable monitoring data also increases vulnerability to corruption and erodes public trust. Furthermore, it undermines the ability of any sphere of government to make informed, evidence-led decisions and to implement corrective action when the data signals a problem.

Secondly, the pandemic has exacerbated existing municipal challenges in collecting revenue. The need to urgently pay for emergency tanks and tankers also forced the DWS to make some hard choices about reallocating budget ring-fenced for the repair and maintenance of infrastructure.

Thirdly, should the state decide down the line to withdraw the emergency water services it has provided as part of the COVID-19 response, it could be argued that this is unconstitutional on the basis that it constitutes a retrogressive measure in the form of the removal of existing access to water. Nevertheless, counterarguments to the effect that such a withdrawal of emergency supply is reasonable (in terms of section 27(2) of the Constitution), or is justifiable (in terms of section 36 of the Constitution) would be available.

With the national rollout of a vaccination programme underway, the end of the COVID-19 pandemic may be in sight for South Africa. This eventuality would require careful planning as the nature of water services provision shifts from emergency back to routine. However, as the effects of climate change intensify, "routine" may well be a thing of the past anyway, even in a post-COVID-19 world.

For these reasons it is prudent to reflect on the DWS' COVID-19 response. The key lessons which can be distilled from an examination of this response are that: a) a reliable monitoring system is a non-negotiable component of water services provision, and particularly in times of crisis; b) while agility in a crisis is important, prioritising short-term action at the expense of long-term sustainability places future water services provision at considerable risk; and c) when rolling out an emergency response in the heat of the moment, attention must be paid to what legal obligations are being created by emergency supply, as this may cause difficulties when the crisis has abated and the state tries to transition from emergency to routine water services provision. As the impacts of climate change intensify, and South Africa moves into increasing water insecurity, these are lessons which the state will do well to heed.

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List Of Abbreviations