The South African legal framework and institutional arrangements relating to water services provision is complicated and can be somewhat daunting to the uninitiated. This section provides a summary thereof (Vermeulen, 2002), with particular consideration as to applicability towards drinking-water quality.
Legal Framework
Since 1994 various pieces of legislation concerning the water and local government sectors have been finalised. The most important are:
The Constitution of South Africa, Act 108 of 1996, assigns responsibility of ensuring access to water services to local government. The role of the national and provincial spheres of government is to support, monitor and regulate local government.
The National Water Act, Act 36 of 1998, defines a new way of managing South Africa's scarce water resources. This Act states that water is an indivisible national resource for which national government is the custodian.
The Water Services Act, Act 108 of 1997, further defines the municipal functions of ensuring water services provision.
The National Environmental Management Act, Act 107 of 1998, provides the overarching framework for environmental management in South Africa by providing for "co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance and procedures for coordinating environmental functions exercised by organs of state; to provide for the prohibition, restriction or control of activities which are likely to have a detrimental effect on the environment".
The Local Government: Municipal Demarcation Act, Act 27 of 1998, provides a legal framework for defining and implementing a post-transitional system of local government.
The Local Government: Municipal Structures Act, Act 117 of 1998, defines types and structures of municipalities. Three categories of municipalities exist in South Africa after demarcation: Category A (Metropolitan), Category B (Local), Category C (District).
The Local Government: Municipal Systems Act, Act 32 of 2000, defines how local government should operate and allows for various types of partnership arrangements a municipality may enter into to ensure delivery of services for example water.
The Local Government: Municipal Structures Amendment Act, Act 33 of 2000, places the function of ensuring access to water services (as well as Health and Electricity) at a district level, unless a local municipality is authorised to perform this function.
The New Municipal System
The second democratic local government elections held on 5th December 2002 heralded the introduction of the new local government municipal system. The new system reduced the number of local government structures from 843 to 284:
- 6 metropolitan municipalities (Metro's - 'Unicities' with no sub-structures)
- 47 district municipalities covering the whole country; and
- 231 Local Municipalities located within the areas of the district municipalities.
A district municipality may typically contain three to six local municipalities. A local municipality usually includes two to three towns as well as surrounding rural areas.
The new local government structures are faced with many challenges, including amalgamation of old administrations, as well as the challenge posed by rural areas and parts of the former homelands. The division of powers and functions between district and local municipalities has been, and still remains, a major issue to resolve.
Institutional Arrangements for Water Services
The primary responsibility for water services provision rests with local government. In terms of Section 84 of the Municipal Structures Act, the responsibility for providing water services rests with district and metropolitan municipalities. However, the Act allows the Minister of Provincial and Local Government Affairs to authorise a local municipality to perform these functions or exercise these powers. The district (or authorised local) municipality is the water services authority as defined in the Water Services Act. There can only be one water services authority in any specific area (that is, water services authority areas cannot overlap).
Duties of Water Service Authorities
Water services authorities have the following primary responsibilities:
Realisation of the right to access to basic water services: ensuring progressive realisation of the right to basic water services, subject to available resources (that is, extension of services), the provision of effective and efficient ongoing services (performance management, by-laws) and sustainability (financial planning, tariffs, service level choices, environmental monitoring).
Planning: preparing water services development plans (integrated financial, institutional, social, technical and environmental planning) to progressively ensure efficient, affordable, economical and sustainable access to water.
Selection of water services providers: selection, procurement and contracting water services providers (including itself).
Regulation: of water service provision and water services providers (by-laws, contract regulation, monitoring, performance management).
Communication: consumer education and communication (health and hygiene promotion, water conservation and demand management, information sharing, communication, and consumer charters).
Within this framework, the water services authority is essentially the regulator of the service and is responsible to ensure that services are provided effectively, efficiently, sustainably and affordably. The operational function is undertaken by the water services provider, the institution that actually provides the service. There must always be a contract between the water services authority and the water services provider.
A water services authority may either provide water services itself (internal mechanism), or contract a water services provider to provide water services (external mechanism). For an internal mechanism, the water services authority must manage and account separately for the two functions. In practical terms this might mean that a municipal manager, acting on behalf of the municipality, contracts (as the water services authority) with the manager of the water services department to provide water services in terms of a performance contract with the municipality. In the second case, the water services authority must regulate the water services provider according to the contract specifying clearly the allocation of roles and responsibilities between the regulator and the provider.
Duties of Water Services Providers
The main duty of water services providers is to provide water services in accordance with the Constitution, the Water Services Act and the by-laws of the water services authority, and in terms of any specific conditions set by the water services authority in a contract. A water services provider must publish a consumer charter which is consistent with by-laws and other regulations, is approved by the water services authority, and includes the duties and responsibilities of both the WSP and the consumer, including conditions of supply of water services and payment conditions.
Types of Water Services Providers
The most common "types" of water services providers are described below for the purposes of illustration. This listing is both brief and incomplete. This is because the definition of WSP is broad and a variety of possible organizational forms for water services providers exist. Both the content of the contract between a water services authority and water services provider and its enforceability (that is, the ability to perform the service effectively) are more important than the type of water services provider.
Municipalities - As already mentioned, a water services authority can also be a water services provider, both within its own area as well as by contract with another water services authority or water services provider.
Municipal entities - These are municipal-owned and controlled public providers which can be set up in terms of either a by-law or the Companies Act (RSA, 1973).
Water boards - These are water services providers whose primary function is the provision of water services to other water services institutions.
Community-based Organisations - A community-based organisation, acting as a WSP, is a not-for-profit organisation within a specific community providing a municipal service to that community with the mandate of that community, where the organisation is acting in the overall interests of the community.
Private operators - These can vary from SMME's to more established larger private operators. They could be locally or foreign owned and can include multinational corporations.
Other types of water services providers - In some cases water user associations, industries and mines provide water services to or on behalf of municipalities. In these cases, the organisation is a water services provider even though the provision of water services is not the main business of the organisation and the provision of water services is undertaken for the purposes of assisting municipalities who have limited alternatives. The relationship between the water services provider and the water services authority must be defined in terms of an appropriate contract.