Cooperative government in South Africa : examining enforcement mechanisms for municipalities to comply with South Africa’s water regulatory framework

Abstract

There is overwhelming evidence that South Africa’s rivers are heavily polluted, a situation which is attributable to a large degree to poorly functioning and inefficiently managed waste water treatment works in municipalities. The evidence suggests, furthermore, that municipalities often do not comply with their constitutional obligation to provide water services in a sustainable manner and promote a safe and healthy environment. Such non-compliance infringes on people's constitutionally guaranteed rights to a pollution-free environment and equitable access to sufficient and safe water. The problem is that municipalities are not properly managing the waste water treatment works (WWTWs) and not regulating industrial discharge into these works in accordance with the prescribed national norms and standards. The National Water Act 36 of 1998 and other related Acts provide for legal and informal enforcement mechanisms that criminalise acts of pollution. However, none of them have been effective in enforcing municipal compliance with the national norms and standards of effluent management. There are two main reasons for this. First, the constitutional structure does not allow the Minister responsible for water management to exercise direct supervision of the municipalities despite the functional relationship the Department of Water and Sanitation has with municipalities in respect of water. Secondly, the Constitution (1996) instructs the spheres of government to avoid legal processes and cooperate with one another by intervening to execute the function if the sphere responsible for the function lacks capacity. This thesis explores the possible use of two statutory instruments of cooperative government and intergovernmental relations as strategies to complement and support the conventional enforcement measures in the water sector: the establishment of water intergovernmental forums; and the use of implementation protocols to supervise municipalities that chronically lack capacity as a way of providing targeted support and monitoring to facilitate an effective compliance and enforcement regime in the water sector.