Water cut-offs Cape Town unconstitutional, says DWA

The water cut-offs  in Cape Town based on one of its by-laws is unconstitutional, as the South African Constitution provides that everyone has the right to have access to sufficient water. The by-law conflicts with the empowering legislation as well as with the Water Services Act. But the City of Cape Town is within the law in terms of applying water flow restrictors to those that are defaulting.

These are the main conclusions of the Department of Water Affairs’ response in its Regulatory Declaration with regard to the concerns and issues that have been raised by various civil society groups in 2008 and were formally raised at the Portfolio Committee on Water Affairs and Forestry in February 2009.

“However, the impact of the restrictors has very negative consequences for human dignity and they are therefore socially unacceptable. Currently there is no regulation that covers the flow rate for those restricted. DWA commits itself to review this issue and shall advise all municipalities to review the use of flow restrictors”, writes DWA in its role as national regulator of water services.

On two other complaints the regulator sides with the civil society. The list provided by Cape Town of areas where the flow restrictors have been installed show that 70 percent of them were installed in low income areas and 30 percent in affluent areas. “Hence the community has a point about the device being used mainly in low income areas. DWA has noted that Cape Town City Council has taken a decision to implement the device in all new developments irrespective of low or high income area”.

On the complaint about insufficient consultations with the citizens DWA regulator concludes that although Cape Town provided extensive documentation on consultation “it does appear that the communities are not satisfied with this process. DWA has made recommendations on this issue”. [which ones?]

Source: City of Cape Town Report, in: Water Regulation Bulletin, no 3, October 2009, p. 6