Intergovernmental response measures to address failing municipal water supply services : a legal perspective

Abstract

As per Schedule 4B of the Constitution of the Republic of South Africa, 1996 the important government function of delivering water supply to communities rests with municipalities. This function must be executed, however, within a constitutionally designed system of cooperative government, which renders it necessary to understand the role of every sphere of government in giving people sustained access to adequate water supply services. It is also important to understand the dynamics at play and the consequences that would follow if a municipality failed to deliver water supply services. The widespread challenges in South Africa with regards to water and sanitation in local communities serve to underscore the significance of an enquiry into such matters. The body of constitutional -, local government -, water - and environmental law in South Africa describes the duties of local government in relation to the supply of water to communities. This study unpacks these duties of local government and the role of local government vis-à-vis provincial and national government, while it also considers the intergovernmental response measures available to provincial government, specifically to address the issue of the so-called "failing municipal water supply services". The more obvious intergovernmental response measures in the event of failing municipal water supply services at the disposal of provincial government appear to be particularly intrusive, and may make severe inroads into the autonomy of local government. In this study, following a discussion of failing municipal water supply services, an intergovernmental response measure model is proposed in which the options available to provincial government to act upon a municipality's failure to provide water are presented. The model ranges from the least intrusive measures (such as supervision) to the most intrusive measures (such as intervention and judicial action). The study concludes with recommendations with respect to the order in which measures should be applied in order to ensure cooperative intergovernmental relations whilst ensuring that municipalities provide sufficient water to their communities in a sustainable manner.