Three decades after South Africa achieved democracy, the country is working to see the spirit of its constitution realised in its water infrastructure.
The constitution of South Africa is emphatic about the equality of citizens under the legal framework. However, three decades after the arrival of democracy, inequality of access to water is growing as a legal concern.
Former Pinsent Masons legal director Margo-Ann Werner, now a director at Fairbridges, tells ALB: “We have watched the [water] sector deteriorate and we are only now seeing government step up and take action at the point where it has reached a critical status.”
Legislative framework
The South African constitution heavily emphasises the right to equal resources and dignity for all citizens. The current legislative regime consists of the National Water Act, which makes water supply a responsibility of the government, and the Water Services Act – a related item of legislation which informs the role of municipalities and their purview regarding the water sector.
Those are also subject to the Municipal Finance Management Act, which Werner explains breaks down “key provisions around how they manage their allocated budgets, as well as the revenue that they generate from their constituents and how they allocate those finance appropriately”.
She points out that this act is a key piece of the puzzle, because it has been the municipal mismanagement of the maintenance of the water infrastructure which has resulted in the breakdown of its essential functionality.
“The frustrating point is that we have really good legislation, but it’s the implementation and the carrying out of what the legislation intends that falls short,” Werner says.
Municipal breakdown
Werner reflects the anger of South Africans at the botched execution of the legal framework by the municipal authorities, remarking: “It’s the disjointed and misaligned implementation of our overarching regulatory regime around water security, water supply and water services in South Africa.”
She reiterates that the infrastructure for the water sector has been collapsing for a long time, however she adds that her team was seeing that “over the years, the figures were getting worse and worse”.
Along with the outdated and deteriorating infrastructure, and the mishandled collection and distribution of revenue intended to upkeep the water systems, another aspect of the situation is the growing South African population. Not only have the municipal authorities failed to keep the infrastructure working, they have also failed to expand its capacity to account for the growing demand.
Updates to the legal framework
Werner agrees that while the laws are well-written, they were due for an update, driven by the Department of Water and Sanitation, the presidency and non-governmental organisations (NGOs). Werner notes that while the government has finally taken initiative after a long time of inaction, “it is off the back of the frustrations of South African citizens” who have been struggling with the deteriorating infrastructure.
While South African households have seen a rise in access to piped water from 61% in 1996 to 82% in 2022, the reliability of water access has declined, with the proportion of households experiencing water interruptions lasting more than two days rising from 24% in 2012 to 34% in 2024.
A National Water Crisis Committee had also been established as the government’s central coordinating body to tackle the multi-faceted nature of the problem.
There are key amendments to the existing items of legislation currently under review, including the Water Services Amendment Bill, which was enacted in September 2025 and alters the 1997 Water Services Act “quite substantively”, according to Werner.
Another item under review is the National Water Amendment Bill, which would alter the 1998 National Water Act.
“What we are seeing is really positive,”, says Werner. “We have picked up issues with implementation, interpretation, gaps in enforcement of the legislation. That is what these amendment bills would look to try and [address] and make these key pieces of legislation a little bit more robust and a bit easier to implement”, explains Werner.
Fixing the legislative leaks
The amendments to the National Water Act have been designed to address equitable allocation of water to sectors which have been underserved in the distribution. “For example, our agricultural sector is a significant water user,”, says Werner. “What other sectors require additional allocation? How can we better utilise our water resource as to preserve it?”
Looking at the amendments to the Water Services Bill, proposals have been put forward for a licensing regime for the water services providers, meaning the municipalities, which Werner says would allow the Department of Water and Sanitation to “actually implement enforcement measures against municipalities that are not performing appropriately in terms of how they are managing the water resources as a water services provider and authority”.
She adds optimistically that the comment period offered to the South African public to review the legislative reforms will have served as a good opportunity for the legal, engineering and water sector specialists to give their input “to craft this legislation so that it really is fit for purpose and can feasibly achieve what it intends to”.
South Africa also took a step towards addressing its contributions to the climate crisis with its Climate Change Act, which was enacted in 2024, albeit after its earlier edition was diluted following a campaign by pro-fossil fuel business groups, to the chagrin of climate activists.
Ultimately, the South African legal system was designed to bring the country out of apartheid and into a democratic system that recognises the rights and dignity of all citizens. “Acknowledging the inequalities of our past has in fact been integrated into our constitution and has flowed down into our water legislation,” Werner comments. “Let us now see effective implementation of our legislation so that those inequalities can be alleviated finally.”
Source: www.africanlawbusiness.com
