Act within the law

IN THE wake of the lack of water in some areas for more than three weeks, the POST asked human rights expert Professor Karthy Govender for his insights.

What the Constitution and statutory law says:

There is a constitutional obligation that people should have access to water. Then there are statutory legislative obligations which stipulate that people are entitled to a certain free quantity of water every month, and over and above that people have to pay. Still, there is a direct statutory duty on municipalities to provide water. So that is the first principle, simply because water sustains life and it is a fundamental principle of governance that the authority that is in charge must provide that service.

The question that then arises is: what is the government doing to meet this in this particular instance? Are the steps that they are taking rational? What are the steps that they are taking, which obviously would be intermediate steps? If they are not acting rationally, then they are acting in violation of the law.

If, for instance, what they (the community) say is correct, that they are providing water tankers at times that are not suitable to people, etc, then obviously that is not rational. They have to look at the community’s needs, and see how they can provide access to water in a way that the community actually gets the water. The community needs to understand that if this is the crisis, then people should be helping the elderly get the water from the tankers. But the question must be: has the government provided adequate tankers? If they haven’t done that, then they are failing both their constitutional and statutory duties.

Poor governance:

One of the problems we have is that we have the government reacting to disasters in instances where, had they acted properly in terms of upkeep of the infrastructure, the consequence of the disaster would have been less severe.

Because we have a government that is not planning and implementing properly, we have the consequences of disasters lasting much longer than they ought to. That’s bad governance.

If the water being supplied is done in a manner that does not adequately meet the physical and health requirements of the community, then the government is failing its constitutional and statutory obligations to provide water to people.

What recourse do communities have, where they’re not getting the information or help they need?

First, it is important for the community to get the media involved. You would find that the publicity and the exposure of the incompetence often results in a public official taking some steps.

People should also think about whether they should protest outside the municipality. They have a right to peacefully protest and that can be a message to the municipality. This is why we have in the Constitution a right to peaceful protest. The more people protest, the louder their voices become and municipalities that don't care are forced to listen.

The third principle is that they should approach a body like the Legal Resource Centre or the Human Rights Commission and lodge a complaint about the lack of water. The Legal Resource Centre may be better suited to take a case to court. I can’t say whether the application would be successful but it would put further pressure.

We can’t expect the municipality to deal with the impossible, but what the concern is, is that they just ignore you as long as they can and as long as they can get away with it. So the more pressure you put on them, the better it is.

The community can also form an organisation among themselves and write to the Minister of Water and Sanitation, Senzo Mchunu, and his department, and indicate the problem they are having. So you exert a variety of pressures – you use the press, peaceful protest action, possible litigation, plus involve the national government, and you hope that something happens.

Unfortunately, you would not need to do this if you had proper governance, but because we have governments failing in certain respects, I urge people to act within the law.

And these are all principles that you could use to exercise what we would refer to as participatory democracy, where you participate and you protect your own interest.