In South Africa (SA), it is estimated that 16 million people do not have access to adequate sanitation, while 3.5 million do not have access to safe drinking water.⁽²⁾ As such, this CAI paper critically analyses the denial of the right of access to safe drinking water and sanitation. In so doing, it engages with the debate about whether access to water is a human right, using the situation in the rural areas of the Eastern Cape Province as a case study.

Contextualising the situation in the Eastern Cape, South Africa

The Eastern Cape Province is situated along the southeast coast of SA. The province enjoys a population of “approximately seven million, representing 16% (third largest) of the South African population. The non-urban population amounts to nearly 4,100,000, and dense concentrations of rural and peri-urban settlements occur in other districts and areas.”⁽³⁾ The Eastern Cape Province continues to be one of SA’s provinces with the highest levels of poverty, underdeveloped infrastructure and unemployment.⁽⁴⁾

The province has seven district municipalities - Oliver Tambo, Amatole, Western, Chris Hani, Joe Gqabi, Alfred Nzo and East Griqualand Kei.⁽⁵⁾ This paper refers to the Joe Gqabi district municipality (JGDM), and the rural Hlankomo and Mdeni areas of its Elundini local municipality, as an effective case through which the right to water may be examined. Hlankomo and Mdeni are examples of rural areas in SA that continue to be poorly developed, with the majority of people lacking access to safe drinking water and sanitation. Most inhabitants do not have electricity and are still using candles, indicating that rural development is not taking place. Hlankomo epitomises “the marginalisation of Black rural communities in the Eastern Cape Province of contemporary South Africa.”⁽⁶⁾ It is arguable that this contemporary marginalisation represents a ‘second round’ of social exclusion of rural communities, following on from the historical marginalisation of these communities under conditions of racial capitalism (first under segregation and then under apartheid subsequent to 1948).⁽⁷⁾

Rural areas in the Eastern Cape are, by definition, those areas that are without access to ordinary public services such as water and sanitation and are without a formal local authority.⁽⁸⁾ These areas are characterised by inferior infrastructure, low income, poor site conditions, unreliable water availability, and poor access to health facilities. Rural areas are also informed by a lack of sufficient quantities of clean water, subsequently impairing the ability of most people in rural areas to engage in appropriate personal, food and environmental hygiene practices.⁽⁹⁾ In Hlankomo, for example, inhabitants continue to draw water from the river and fountain. As such, access to safe drinking water remains a dream for Hlankomo. The scarcity of water in rural SA inhibits rural development. The majority of the rural poor in the Eastern Cape Province depend primarily on agriculture for social progress.⁽¹⁰⁾ In this context, questions of access to land-based natural resources such as water are vital to any discourse and practice in relation to inclusive pro-poor rural development.

It should be noted that access to safe drinking water is a very important human need and is consequently perceived to be a human right - a right that remains unrealisedin most rural areas in the Eastern Cape Province. Despite the significant improvements made by SA’s Government in water services provision, some five million people are still obtaining water from rivers and springs.⁽¹¹⁾ Even though the SA Government implemented many rural water supply schemes under the National Reconstruction and Development Programme (NRDP), in places where rural water supply existed, drinking water continues to be of poor quality and is typically considered unsafe. With the increasing privatisation of water services, a question that must be asked is whether water should exist as a human right or as a simple commodity. The Constitution of SA, in answer to this question, states that “everyone has the right to have access to sufficient drinking water.”⁽¹²⁾

The right of access to water and sanitation

In the Constitution of SA, water is recognised as a basic human right, a consequence of the perception that water is the origin of all things – the giver of life. In the same way, the Constitution states that everyone has the right of access to an environment that is not harmful to their health or well-being.⁽¹³⁾ This includes a constant supply of clean, safe drinking water. Drinking water usually comes from two sources: surface water (rainfall and its runoff to rivers or dams) and groundwater (water that has collected in underground stores or aquifers). The Constitution notes that the “state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the right to water,⁽¹⁴⁾ finding a way to use the natural sources from which water originates.

In line with the need to ensure the realisation of the right of access to water and sanitation, the South African Parliament enacted the Water Services Act 108 of 1997. The preamble to the Act identifies the “rights of access to basic water supply and basic sanitation necessary to ensure sufficient water and an environment not harmful to health or well-being.”⁽¹⁵⁾ In the same way, Section 3(1) provides that “everyone has a right of access to basic water supply and basic sanitation.”⁽¹⁶⁾ Moreover, Section 3(2) states that every water institution must take reasonable steps to realise these rights.⁽¹⁷⁾

The Bill of Rights states that SA’s Government has a duty to protect, promote, and fulfil the right of access to sufficient water.⁽¹⁸⁾ The duty to protect requires that the state prevent the violations of the right to access water by third parties.⁽¹⁹⁾ This means, for example, that if a landlord arbitrarialy disconnects the water supply of a lawful tenant, the state must act to restore water to the tenant. The duty to promote the right of access to sufficient water involves, inter alia, the provision of educational and informational programmes aimed at generating awareness and understanding of the right of access to sufficient water.⁽²⁰⁾ Finally, the obligation to fulfil the rights in the Bill of Rights necessitates that the state take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of the right.⁽²¹⁾ An important component of the obligation to fulfil the right is that the state must facilitate and provide access to water. Despite such guarantees, this obligation is not being met in most rural areas, as is the case in Hlankomo. In this context, it is also vital to note that access to water is a precondition for the fulfilment and enjoyment of most other human rights (such as sanitation and health) as enshrined in the Constitution.⁽²²⁾

With most rural communities in SA unable to access sufficient drinking water, the question arises of whether the rural Eastern Cape Province is dealing with an unrealised right of access to water and sanitation. Moreover, within a context in which water has become privatised as a commodity, futher complications arise, with those who cannot afford to pay for water bearing the brunt of health and hygiene crises. As such, the question remains whether the right to have access to safe drinking water and sanitation is being progressively realised – as obligated by the Constitution of SA and various human rights treaties - or continues to exist as a dream deferred.

An unrealised right

Water continues to be regarded globally as a scarce resource and it is, in fact, generally understood that individuals must meet their own water needs. As stated above, the Constitution of SA provides for the progressive realisation of the right of access to water and sanitation.⁽²³⁾ The phrase ‘progressive realisation’ should be interpreted as an obligation on the state to move as urgently and effectively as possible towards the full realisation of this right. However, in a context such as that of the Eastern Cape Province, it must be asked whether this progressive realisation is a reality.

Some gains have been made in terms of attempting to secure water access in SA. Due to the high unemployment and poverty rates in SA within municipal areas, there are both households and citizens who are unable to access or pay for basic services; this group of people is referred to as the Indigent. Operating in this context, one example of progressive action regarding recognition of the right to water is through the “practical and … effective way of targeting free basic services such as water to those who cannot afford to pay for them … through the Indigent Register policy adopted by government at municipal level.”⁽²⁴⁾ A municipality needs to develop and adopt an Indigent policy to ensure that the Indigent can have access to basic services. An Indigent policy will allow the municipalities to target the delivery of essential services to citizens who experience a lower quality of living. Despite this, it is vital to note that regardless of improvements made in government services to the poor, there are still concerns, as is the case in most rural areas in the Eastern Cape Province. Data released by Statistics South Africa in 2007 showed that there has been a failure to reach many of the poorest municipal districts, the case in point being JGMD.⁽²⁵⁾ As such, poor households continue to lag behind in access to government services. Half of poor households in the rural areas of the Eastern Cape still have no access to piped water, electricity and health-care facilities.⁽²⁶⁾ It is against this background, that this paper maintains that what we are dealing with in the rural Eastern Cape Province is the case of the violation of the right to access sufficient safe drinking water and sanitation. Unless this situation is addressed, it seems that the rural areas in the Eastern Cape Province will continue to lack adequate government services and face the denial of the right of access to safe drinking water and sanitation. This calls for urgent attention from SA’s Government in order to ensure the promise of a better life for all.

Towards a solution

Rural transformation must ultimately progress towards the transformation of the poor, in the Eastern Cape Province, into thriving surplus-producing farmers, mostly smallholders, cultivating a variety of food.⁽²⁷⁾ A necessary starting point would be to ensure a progressive realisation of the right to access sufficient safe drinking water and sanitation.

To meet its obligations, SA’s Government should prioritise improvement of access to water in those areas where there is greatest need. Every citizen should have an adequate supply of quality water in order to meet basic needs. Water sources must be as close as possible to households and that water should be available on a daily basis.⁽²⁸⁾ Water should be as accessible and affordable as possible, particularly for the most marginalised and vulnerable members of SA society. An adequate policy should also be developed and monitored to prevent pollution of water resources and encourage water conservation.⁽²⁹⁾

Concluding remarks

The Eastern Cape Province continues to be one of the provinces that most falls behind in terms of rural and industrial development. Water continues to be regarded as a scarce resource in most of the rural areas in the Eastern Cape, as is the case in Hlankomo. The Constitution of SA asserts that everyone has a right to access sufficient water and sanitation. As such, water enjoys the position of a human right, but one that continues to be unrealised in most of the rural areas in the Eastern Cape Province. While challenges remain, it is the duty of SA’s Government to work effectively for the progressive realisation of the right to access sufficient water and sanitation.

Written by Siyabulela Fobosi ⁽¹⁾

NOTES:

(1) Contact Siyabulela Fobosi through Consultancy Africa Intelligence's Rights in Focus Unit ( rights.focus@consultancyafrica.com). This CAI discussion paper was developed with the assistance of Laura Clarke and was edited by Kate Morgan.
(2) Heleba, S., 2012. Access to sufficient water in South Africa: How far have we come?, Law, Democracy, and Development, 15, pp. 1-35.
(3) ‘Safe hygiene practices in Eastern Cape rural communities of South Africa’, Human Sciences Research Council Report, 2012, http://www.hsrc.ac.za.
(4) Ibid.
(5) Ibid.
(6) Helliker, K., 2011. “Land reform and marginalised communities in the Eastern Cape countryside of post-apartheid South Africa”, in Helliker, K. and Murisa, T. (eds.). Land struggles and civil society in Southern Africa. Africa World Press: Trenton.
(7) Ibid.
(8) ‘Safe hygiene practices in Eastern Cape rural communities of South Africa’, Human Sciences Research Council Report, 2012, http://www.hsrc.ac.za.
(9) Ibid.
(10) Helliker, K., 2011. “Land reform and marginalised communities in the Eastern Cape countryside of post-apartheid South Africa”, in Helliker, K. and Murisa, T. (eds.). Land struggles and civil society in Southern Africa. Africa World Press: Trenton.
(11) Heleba, S., 2012. Access to sufficient water in South Africa: How far have we come?, Law, Development, and Democracy, 15, pp. 1-35.
(12) ‘The Constitution of the Republic of South Africa (Act 108)’, 1996, South Africa, http://www.info.gov.za.
(13) Ibid.
(14) Ibid.
(15) ‘Water Services Act (108)’, 1997, South Africa, https://cisp.cachefly.net.
(16) Ibid.
(17) Ibid.
(18) ‘The Constitution of the Republic of South Africa (Act 108)’, 1996, South Africa, http://www.info.gov.za.
(19) ‘Water Services Act (108)’, 1997, South Africa, https://cisp.cachefly.net.
(20) Ibid.
(21) Ibid.
(22) Ibid.
(23) ‘The Constitution of the Republic of South Africa (Act 108)’, 1996, South Africa, http://www.info.gov.za.
(24) Ibid.
(25) Heleba, S., 2012. Access to sufficient water in South Africa: How far have we come?, Law, Democracy, and Development, 15, pp. 1-35.
(26) Helliker, K., 2011. “Land reform and marginalised communities in the Eastern Cape countryside of post-apartheid South Africa”, in Helliker, K. and Murisa, T. (eds.). Land struggles and civil society in Southern Africa. Africa World Press: Trenton.
(27) Mayende, G., 2010. “Rural development under a ‘developmental state’: Analysing the policy shift on agrarian transformation in South Africa”, in Kondlo, K. and Maserumule, M.H. (eds.). The Zuma administration: Critical challenges. Human Sciences Research Council Press: Cape Town.
(28) Ibid.
(29) Ibid.