Water Law and Policy Reforms in South Africa : Implications for the Realisation of the Right to Water

This paper examines the implications of the water law and policy reforms that have been put in place in South Africa for the population's access to water for consumption and sanitation purposes and for the realisation of the right to water. The discussion of the policy and regulatory framework applicable to water more broadly serves to illustrate the tensions that exist in the management of water resources at the national and international levels between human rights perspectives on water and increasing commodification of the resource. On the one hand, South Africa has some of the most progressive water policies on paper and has attempted to implement a free entitlement to drinking and domestic water. The water law framework adopted in the post-apartheid era in particular the Bill of Rights found in the Constitution and the 1998 National Water Act - integrate such principles as the human right to water, equitable access, de-linking of land ownership and water rights, and the unity of the hydrological cycle. At the same time, however, there remain huge disparities in access to basic water services and allocation of water, mostly as a legacy from the apartheid regime but also as the result of the application of an economic approach to water policy. Indeed, the application of cost-recovery, decentralization and privatisation policies to water have contributed to maintaining an important percentage of the population with limited water infrastructure and little or no access to water for household needs and sanitation. These policies have effectively impeded the realisation of the right to water, for instance with the use of prepaid meters in the poorest neighbourhoods. The policy and legal framework has also paved the way for privatisation of the water services sector in South Africa , although instances of privatisation have spearhead a successful public campaign of opposition. More recent developments in water policy have attempted to remedy the situation and to realise the right to water. The policy of Free Basic Water is designed to guarantee each person a minimum basic quantity of drinking water and achieve universal access to water and the constitutional right to water, although it has been criticised as containing important flaws and being inadequately implemented. The paper also examines the extent to which the courts have been instrumental in supporting and enforcing the right to water found in the constitution.