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Reflecting on the implications of the Draft Water and Sanitation Policy on Privately Owned Land (2022)

Isandla Institute | 2023-03-22 | 649 views

Access to water in South Africa is characterised by a number of anomalies. For example, while some parts of South Africa like Nelson Mandela Bay continue to battle conditions of drought, other areas in Mpumalanga and North West provinces are battling the severe consequences of flooding. In the City of Johannesburg the anomaly is that while there is an ample supply of water, failing infrastructure has placed access to that supply at risk. It gives literal meaning to the famous and often paraphrased quote of [‘water, water everywhere and no[t] a drop to drink.'

As touched on in the previous blogpost , failing water infrastructure combined with other basic service delivery failures is considered to have reached crisis point across South Africa. Although recent water outages in parts of Johannesburg show that wealthier suburbs are directly impacted, the crisis disproportionately affects poor households and marginalised communities. Historically, the supply and quality of water in South Africa has been relative to where you find yourself. Those who live in informal settings such as farmland in peri-urban or rural areas, informal settlements, backyard residences and occupied buildings have faced an inconsistent and often sub-quality supply of water. As demonstrated in the Mshengu judgment, there are entire sectors of the municipal community (in that case, farm labourers) who are excluded from receiving basic services.

Against this background, the Draft Water and Sanitation Policy on Privately Owned Land: version 1 was published for comment in November 2022. It was thus disappointing to discover that while the Draft Policy purports to deal with access to a safe and potable water supply and sanitation to residents on privately owned land (defined as ‘any land that is not public land, or any land controlled or leased by the State, but is owned or under the control of a single private individual or entity or group of private individuals collectively’), the Draft Policy is restricted to ‘peri-urban and rural areas where most of these properties are far away from the municipality and its services systems.’

A collective of civil society organisations thus chose to make a submission on the Draft Policy in order to highlight some of the anomalies it presents.

As a principle starting point, we argue that the title of the Draft Policy is misleading as it creates an assumption that it encompasses the broader scope of all land that is privately owned and yet focuses only on one aspect of privately owned land: peri-urban and rural land. We believe that the provisions in the Constitution, together with the extensive legislative framework for basic service delivery not only binds all spheres of government to collectively work towards the progressive realisation of these rights, but it creates a facilitative framework to do so, inclusive of the necessary legislative, executive and financial tools. These rights and obligations apply equally to those living on privately-owned land in urban areas, making their exclusion that much more questionable and subject to constitutional review.

The Draft Policy acknowledges that on farmland there is often an underlying labour/contractual relationship which exists between landowners and land occupiers. This is regulated by policy and legislation. The Draft Policy is thus aimed, in part, at emphasising the avenue of capacitating landowners and others to act as Water Service Intermediaries to ensure that all farm dwellers receive water and sanitation services.

By excluding those living on privately-owned land in urban areas the Draft Policy, fails to shed any light on the thorny issue of private land ownership in urban areas. A recurring argument encountered in all three spheres of government is that ‘service infrastructure (which often requires capital investment) cannot be provided on private land.’ Municipal officials in particular have raised the argument that the legal framework regulating the financial decision-making of municipalities, more specifically, the provisions of the Municipal Financial Management Act 56 of 2003 (MFMA), prevents municipalities from investing in the necessary infrastructure on private land that is needed to facilitate such access.

As previously raised, Isandla Institute, commissioned a legal opinion from Senior Counsel to clarify the obligations and powers of municipal governments to provide basic services for backyard dwellers on private land. An evaluation of the provisions of the MFMA as well as other key legislation that governs local government, like the Municipal Systems Act, reveals that there is nothing that prohibits the investment in infrastructure on private land for the purposes of basic service delivery. In keeping with the directives in the MFMA, we agree that while inefficient and wasteful expenditure must be avoided, municipalities must ensure coherent and sustainable service delivery to all residents, including those in urban areas who live on private land. Similarly, Senior Counsel Opinions Regarding the Provision of State-funded Services on Private Land in eThekwini Municipality considers the applicable framework for extending services to those who live in informal settlements on private land. The opinions examine the framework for service provision for informal settlements based on categorisation according to the permanence of a settlement and/or identification for upgrading. Following from this, the most efficient and sustainable form of infrastructure investment should be adopted. eThekwini Municipality has developed an Informal Settlement Incremental Upgrading City-Wide Strategy and Programme to institutionalise their approach.

There are many replicable lessons that can be learned from these opinions as well as the eThekwini municipal strategy. We urge the Department of Water and Sanitation to examine these approaches and engage with the Department of Human Settlements as well as the Department of Cooperative Governance and Traditional Affairs to craft an appropriate national policy. This was advocated for in a joint Submission by civil society organisations into the proposed New Human Settlements Policy and Human Settlements Bill.

In moving forward, we emphasise the urgent need to develop a national policy or guidelines that deal decisively with the rights and duties owed to those who live on private land in urban areas. This requires a clear delineation of duties amongst the different responsible sector departments as well as spheres of government, and must include guidelines on how to implement in practice. This must be matched with sufficient indicators and oversight mechanisms, which should include enforcement mechanisms .e.g. when a private landowner refuses to cooperate in providing access to water. Equally significant is the importance of appropriate financial allocations for the roll-out of infrastructure. The scale of need demands a comprehensive discussion of financial resources at a national level.

As highlighted at the beginning of this blog, intervening events disproportionately impact economically vulnerable people who do not have access to alternate supplies of water. While acknowledging the importance of environmental sustainability, the Draft Policy does not display any commitment to the development of medium to long term contingency plans to prepare for the shocks that people in informal settings will encounter in the future in the context of water supply. In conclusion, more work is required in thinking through the implications of water provision on privately owned land in all contexts.

Image credit: Isandla Institute / Eric Miller, Mfuleni, 2019

Slum upgrading remains the most financially and socially appropriate approach to addressing the challenge of existing slums. UN Habitat (A Practical Guide to Designing, Planning, and Executing Citywide Slum Upgrading Programmes 2015 (PDF), page 15)

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