Constitutional Hill

Water is life, but the struggle for it is deadly

The death of at least three people protesting against the lack of access to water in Mothotlung in the Madibeng municipality, all allegedly due to action by members of the South African Police Service (SAPS), brings into sharp focus the failure of some municipalities to fulfil their constitutional obligations. It also raises the spectre of an out-of-control police force using excessive violence to punish protestors for challenging the authority of the government or the police.

“Water is life,” wrote Justice Kate O’Reagan in the Constitutional Court judgment of Mazibuko and Others v City of Johannesburg and Others. “Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising, then, that our Constitution entrenches the right of access to water.”

It may well be that “water is life”, as the Constitutional Court claimed, but the killings in Mothotlung also demonstrate that the struggle for access to water in rural South Africa can itself be deadly.

For the residents of Mothotlung, the Constitutional promise of access to water, contained in section 27 of the Bill of Rights, must ring hollow. In December the inhabitants of Mothotlung were without access to water for almost two weeks. Water again stopped flowing in Mothotlung last Friday with no indication of when the problems would be solved, sparking the most recent protests.

As Merle Dipua Seema, a local resident (who also helpfully provided the correct spelling for Mothotlung) explained to me on Facebook, even when water is available in the area, its quality is of a dubious standard, with devastating consequences for the poor:

The water, when available, may be scientifically potable ,but not according to the greasy rim it leaves in my bath nor toilet. Running a water bottled water bizniz has become a lucrative opportunity. The need to boil tap water for those that can’t afford further strains the household budget.

It goes without saying that this is not the state of affairs promised by the Constitution. Section 27 of the Constitution requires the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to water.

To give meaningful content to this constitutional obligation, Parliament has enacted the Water Services Act, which regulates the right of access to water and sets out the exact obligations placed on the state regarding the provision of access to clean water. Section 3 of the Act confirms that every municipality has a duty to take reasonable measures to realise the right to a “basic water supply”.

“Basic water supply” is defined in the Act as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene.”

In terms of section 9 of the Act the Minister can prescribe a compulsory national minimum standard of water supply that must be provided to residents by all municipalities. The regulations issued by the Minister determine that every municipality is legally required to provide a:

minimum quantity of potable water of 25 litres per person per day or six kilolitres per household per month at a minimum flow rate of not less than 10 litres per minute; within 200 metres of a household; and with an effectiveness such that no consumer is without a supply for more than seven full days in any year.

It is clear that the Madibeng municipality has consistently failed to meet its basic constitutional and legislative obligations as set out above. The municipality is therefore flouting the Constitution and the law and seems either incapable or unwilling to comply with it.

As the Daily Maverick reported earlier this week, it is perhaps not surprising that the Madibeng municipality is unable to provide some of its citizens with regular adequate quality supply of running water.

In March 2010, the Madibeng municipality was placed under administration after an audit exposed financial mismanagement to the tune of R100 million. In June 2011, newspapers exposed the fact that the new executive mayor was renting a BMW at the cost of R2,025 per day. In April last year, it was reported that R1 billion of assets, supposedly owned by the municipality, were missing.

The case highlights the limits of the law in situations where the political process has broken down. People living in Mothotlung do not have the funds to finance court action to have the abuse of their rights halted. (This is unlike the – mostly middle class – Gauteng residents who opposed paying e-tolls, who funded several failed court bids to stop the implementation of e-tolls.)

What are the residents of Mothotlung to do to force the municipality to comply with its legal obligations? Yes, they could try to vote out the Madibeng councillors at the next local government election, but given the organisational muscle and financial resources available to the governing party it is not clear that they would actually succeed in doing so. In any case, that election is still several years away.

They could theoretically also place pressure on ward councillors to take up their case. But the ward councillors are beholden to the governing party – not the voters – as they were nominated as ward councillors by the leadership of the governing party and depend on the patronage of the party leadership to remain in office.

And – this is just a hunch – but I suspect that a mayor of a relatively small municipality who splurged more than R2,000 of taxpayers’ money a day on renting a BMW is probably not going to respond promptly to a petition handed to him at a genteel and peaceful picket.

The theory of participatory democracy breaks down when elected officials – beholden to financial benefactors or party bosses instead of their voters – do not feel pressured to act in an open and transparent manner or to account to those whom they were elected to serve. When the elected officials are too corrupt, too heartless or too incompetent to provide residents with the most basic life-saving resources and when they utterly fail to respond to complaints by those who voted for them, it is unclear what democratic avenues are open to residents to secure access to life-saving water.

Predictably the residents of Mothotlung resorted to protest action in the wake of yet another water shutdown and, just as predictably, the protest action turned violent. The ensuing violence and the resultant police brutality finally grabbed the attention of the media and therefore also the politicians from the national government anxious about an upcoming election.

It was during these protests that the police shot and killed two protestors with live ammunition and a third protestor mysteriously fell out of a police vehicle (providing uncomfortable echoes of the Apartheid years, when detainees often “slipped on soap” or “jumped” to their deaths out of the 18th story of John Vorster Square).

Remarkably, on Twitter and other social media platforms, some commentators suggested that because the protest was not entirely peaceful, the police was perfectly justified in killing the protestors. This view is not only barbaric; it also flies in the face of the Constitution and the law.

Of course, the SAPS is legally required to protect property and to maintain or restore calm in a community. However, police officers are constitutionally and legally required to do so by using the minimum amount of force. Police officers are very seldom justified in killing anyone and are not allowed to use live ammunition on protestors unless their lives are under imminent threat.

This is so, not only because the right of everyone to life and bodily integrity is protected in the Constitution, but also because police officers are not magistrates or judges and hence do not have the power to determine the criminal guilt of protestors or to punish protestors for allegedly taking part in illegal activities. When police officers use maximum force against unarmed protestors where large scale damage to property is not threatened and subsequently maim or kill some of the protestors, they are no more than vigilantes who have unlawfully arrogated to themselves the right to judge and punish fellow citizens.

When police officers use maximum force to kill protestors who do not threaten their lives, they are doing no less than meting out the death penalty to citizens who have not been found guilty of any crime. It seems that some members of the police force, and some of their supporters who cheer on their brutality, yearn to bring back the death penalty which was found to be unconstitutional in 1995.

It’s a shocking turn of events. Parliament should, of course, call the Police Commissioner, the minister of police and ultimately the president who heads the government under whose watch these extra-judicial killings are occurring, to account. But because the majority of members in Parliament are beholden for their jobs to the leadership of the governing party (including the president and the police minister), this is not going to happen.

  • Jacqueline Kanyange 13215303

    This article highlights the fact that the rights of the poor will clearly always take a back seat when it comes to political affairs in South Africa today. The fact that the residents in Mothotlung had to protest so as to access their right to water, a right entrenched in the Constitution for all to benefit from,and as a result face a punishment of death by doing so brings to light the fact that the political processes have broken down in these areas. Though the police is also blamed for killing protesters who did not pose a major threat to them, I think the problem stems from financial mismanagement of funds by officials who instead of serving those who elected them into power, exploit these same people, depriving them of basic needs such as water hence pushing them to resort to measures such as violent protests so as to access their rights.

  • 14147638

    There are two issues that needs to be considered in this article. The one being the right to life as contained in the Bill of Rights and the second being the right to water within reasonable proximity to all households in South Africa as stated in the Water Services Act. Legally the situation in Mothotlung should never have happened if the persons responsible for providing services and protection to the residence followed the law.

    The Cousillors did not fulfill their commitments to the people to whom they had an obligation and used the finances allocated to them to for this purpose to enrich themselves. The money paid on a luxury vehicle and the assest R1 billion that could not be accounted for surely would have been more than adequate to provide the promise of water delivery to the households and these councillors should be held accountable for their actions that was the direct cause of the unrest.

    Similarly it is not the right of the police to take the lives of citizens without being under severe threat themselves and their actions can not be justified at all. In this light the Minister of Police should answer to the people and the law for their actions.

    People should not die fighting for their basic human rights.

  • Veritas Maq (14099072)

    Very sad indeed infact extremely sad. There are two issues here that worries the living daylight out of Me. Firstly, the daily sufferings of fellow south africans especially from rural and poverty stricken parts of the same country we hail mother-land. Secondly, the brutality of the members of the South African Police Service towards our fellow brothers, sisters, mothers and fathers, who have had enough of the incompetence of those vested with the responsibility of ensuring a better life for all.
    South Africans are suffering nation-wide on a daily basis, their democratic rights violated. Right to : life, clean water, medical care, proper sanitation, healthy environment, to mention a few, those rights are there in black and white, enacted in our own constitution which is supposed to be observed as the supreme law, yet so far it’s clearly not. One would ask what are the reasons to justify, the violation or limitation of this people’s rights? are this people illiterate, is their level of educational status an issue? are they not the same people who also cast a vote, to put a ruling party in power? did they do something wrong, that is punishable by the ordeal they get placed in? I believe they did nothing, unless the contrary can be proven. They are just fellow brothers, sisters, mothers and fathers who get ignored and forgotten, and when they raise “The smoke that calls” then they get issued with their passports to meet their creator. When you, as an authoritive figure deny someone a basic thing as water, you possess inhumane and evil attributes, you infact should be the one punished by death, you don’t show qualities to live in a human society. A person with no-water loses their humanity, they can’t bath, cook or even drink, that means they are forced to live like animals, eating raw food and drinking out of rivers and streams to quench thirst…..This is a very painful situation, and who are the perpetrators, the same people whom they have placed in power positions. Sadly, those people don’t go through such things or don’t even have anyone in their families or relatives going through this disturbing cruelty.
    Secondly, the issue of Police brutality is very much disturbing and everytime there is always a justification for it. Police officers have simply became rebels in uniform with a South African flag. To them killing innocent people has became a habit, which gets them sick to the stomach if they don’t feed. Strict Laws must be put in place to govern the police force, since the current ones including the constitution are and have failed. If their cruel actions are not addressed, as matter of urgency, then one day people will pick-up arms and take the police force on. By then, unrest will feel this country and by that time it will be too late to solve the problem or make law or even bring peace to the country.

  • 14118824

    That “motlhotlung” incident was one of signs to show government’s failure to provide service to the people as they promise and in return they expect citizens to be silent.It is stipulated in chapter 2 of The Bill of Rights that every one has the rigth to life so why kill the citizens when exercise their rights.South Africa is a free country and people should exercise their rights end of story

  • Kathryn Clark

    The phrase “killing two birds with one stone” comes to mind when observing how the government operates in cases such as “Motlhotlung”. Not only do they take away a persons right to water away, they manage to take a persons right to live at the same time. This country was once close to a civil war when people were forced to keep quiet and simply go along with what the government tells you too yet what they said went against basic human right.