Policy Analysis of the Water Crisis in Cape Town, South Africa
| Author | Alycia Kokos |
| Position | J.D. Candidate, American University Washington College of Law 2019 |
| Pages | 28-29 |
28 Sustainable Development Law & Policy
Policy AnAlysis of the WAter crisis in
cAPe toWn, south AfricA
Alycia Kokos*
Following a three-year drought, the city of Cape Town,
South Africa faces an unprecedented municipal crisis.1
Residents are being asked to curb their daily municipal
water use to thirteen gallons from their already restricted daily
allowance of twenty-three gallons in order to avoid the impend-
ing “Day Zero” in which residential and commercial taps will
be turned off for nearly four million residents.2 Though water
consumption has decreased since January 2018, most residents
have not complied with the restriction.3 This creates a point of
tension in the diverse city that contains both luxury homes and
shanty towns.4
While the crisis appears to stem from one of the worst
droughts in over a century that could be related to climate
change,5 others blame the government’s lack of oversight in
effectively foreseeing that such an event could occur and pro-
actively implementing safeguards.6 By examining the roles that
the National Government plays in the current Cape Town water
crisis, options become apparent for the South African govern-
ment going forward.
Section 24 of the Republic of South Africa’s 1996
Constitution sets forth the right of its citizens to a livable
environment and requires that the government take legislative
or other government actions to allow public access to natural
resources, such as water, and promote conservation of such
resources through an ecologically sustainable development.7 To
this end, the National Environmental Management Act (NEMA
or “Act”) was enacted to meet these public needs and provide
“co-operative, environmental governance” through the estab-
lishment of institutes to promote the principles of the Act.8 The
National Water Act of 1998 also empowers the national govern-
ment to maintain and provide public access to the country’s
water resources.9
South Africa’s Department of Water and Sanitation (DWS)
has been criticized for misallocating water, including their failure
to curtail the allocation of water for agricultural use, especially
when the prospects of the drought became more apparent.10 As
set forth in their Water Management Policy regarding ground-
water, the Department states that their protection of the coun-
try’s groundwater will be based on a “precautionary approach,”
meaning that all groundwater will be “assumed to be vulnerable
to damage unless it can be shown otherwise.”11 To accomplish
this, the DWS will take “source-directed, resource-directed, and
remedial management measures,” such as the determination of a
“reserve” consistent of water used for basic human needs such as
drinking, food preparation, and personal hygiene.12 Therefore,
it can be argued that it was the Department’s responsibility to
act with “precaution” and avoid a low water level by actively
maintaining a reserve of water and looking to alternative sources
or improvements far earlier.
In turn, DWS Minister Nomvula Mokonyane has accused
government ofcials of dragging their feet on capital funding
for infrastructure and maintenance, as well as withholding
emergency disaster relief funds,13 and has thus blamed over-
consumption of water as an underlying issue.14 Under the
National Water Act of 1998, South Africa’s national government
is considered the “trustee” of the country’s water resources, and
therefore it retains the power to “regulate the ow and use of all
water in the country.” Meanwhile, daily management of a city’s
water falls within the immediate responsibility of the munici-
pality.15 Section 27 of South Africa’s Constitution addresses
health care, food, water, and social security and mandates that
every citizen has the right to have access to sufcient food and
water.16 The country’s large division of wealth puts a strain on
this right to water access by allowing those with a larger income
to install groundwater purication systems while those with
smaller incomes must obtain water through public collection
points that may be overcrowded or long distances away.17 The
national government has a responsibility to provide funding to
ensure that citizens have access to sufcient water through the
use of appropriate infrastructure and maintenance, regardless of
economic status.18
To ensure that the appropriate government entities take
“reasonable legislative and other measures” to avoid infringing
citizens’ rights to sufcient water access, the term “sufcient”
should be more specic and quantitatively dene at what time or
resource level the national government should be held account-
able, and thus compelled to take action.19 The Minister pos-
sesses the authority under the § 4(26) of the country’s National
Water Act to promulgate regulations that limit water use, require
water use be monitored, measured, and recorded by appropriate
entities, and oversee water infrastructure systems from construc-
tion to operation and maintenance.20 Therefore, it is imperative
that the Minister exercise his or her authority by mandating and
enforcing such regulations to avoid infringing citizens’ rights.
However, it is fair to assert that under the current language
of the Constitution that the sustainability of water resources are
expected to be prioritized in governmental actions, especially
as lower than expected rainfall and water scarcity become com-
mon occurrences in parts of the country.21 To accomplish this,
government ofcials should direct DWS to frequently review
the country’s preparedness for water scarcity events and create
*J.D. Candidate, American University Washington College of Law 2019
224813_AU_SDLP_Spg-Sum18.indd 28 10/18/18 1:53 PM
29
Spring/Summer 2018
a stricter framework for sustainable groundwater management
in an effort to increase dam capacity and extend, upgrade, and
maintain current water infrastructure in South Africa.22 Funding
for such projects can be provided through municipal grants or
other emergency funding.23
Any increased investments in infrastructure need to be
complemented by a change in water usage by citizens.24 To
reduce demand for water, there must be an improvement in
water efciency and water-using behaviors.25 This can be done
by installing efcient irrigation technology, replacing inefcient
appliances, taking shorter showers, or flushing toilets less
often.26 Alternatively, the national government can implement
strategies to generate new water supplies, such as the restoration
of watersheds, articial enhancement of groundwater replenish-
ment systems, and the implementation of wastewater treatment
and reuse programs.27
While Cape Town attempts to prevent this crisis, other
countries can learn from their mistakes by actively updating
and maintaining government-run water infrastructure systems in
response to potential impacts of climate change.
EndnotEs
1 William Saunderson-Meyer, Commentary: In drought-hit South Africa, the
politics of water, REutERs (Feb. 5, 2018, 11:09 AM), https://www.reuters.com/
article/us-saundersonmeyer-drought-commentary/commentary-in-drought-
hit-south-africa-the-politics-of-water-idUSKBN1FP226; Norimitsu Onishi &
Somini Sengupta, Dangerously Low on Water, Cape Town Now Faces ‘Day
Zero’, n.Y. timEs (Jan. 30, 2018), https://www.nytimes.com/2018/01/30/world/
africa/cape-town-day-zero.html.
2
Onishi & Sengupta, supra note 1; see also Helen Zille, From the Inside:
The Countdown to Day Zero, dailY mavERick (Jan. 22, 2018), https://www.
dailymaverick.co.za/opinionista/2018-01-22-from-the-inside-the-countdown-to-
day-zero/#.WnRwM66nHcv (stating that “Day Zero” is currently projected for
July 19, 2018 and the current plan is that “one week before the six dams provid-
ing water to the Western Cape Water Supply System (WCWSS) are collectively
projected to drop to 13.5 percent, the City will announce the date on which
almost all the taps in Cape Town’s residential suburbs will be cut off.”); Lauren
Said-Moorhouse & Gianluca Mezzoore, Cape Town cuts limit on water use by
nearly half as ‘Day Zero’ looms, cnn, https://www.cnn.com/2018/02/01/africa/
cape-town-water-crisis-intl/index.html (last updated Feb. 1, 2018) (noting that
the threat of nes and installation of water management meters attempt to keep
residents compliant with the cut backs).
3
Richard Perez-Pena, Cape Town Pushes Back ‘Day Zero’ as Resident Con-
serve Water, n.Y. timEs (Feb. 20, 2018), https://www.nytimes.com/2018/02/20/
world/africa/cape-town-water-day-zero.html.
4
Id.; see also Said-Moorhouse & Mezzoore, supra note 2 (stating that
the city is now working to upgrade its water systems by building desalination,
aquifer, and water-recycling projects, to help lengthen what water remains).
5
Onishi & Sengupta, supra note 1.
6
Zille, supra note 2.
7
See s. afR. const. 1996. § 24; see also Warren Beech & Nicholas Velt-
man. Environmental law and practice in South Africa: an overview, WEstlaW
PRactical laW, https://uk.practicallaw.thomsonreuters.com/4-502-7865?tran
sitionType=Default&contextData=(sc.Default)&rstPage=true&bhcp=1 (last
updated Feb. 1, 2017).
8
See national EnviRonmEntal managEmEnt act 107 of 1998 (S. Afr.);
see also Beech & Veltman, supra note 7; national WatER act (no. 36 of
1998) §1 (S. Afr.) (stating that three key regulating authorities, Department of
Environmental Affairs (DEA), Department of Mineral Resources (DMR), and
Department of Water and Sanitation (DWS) were created under this Act).
9
national WatER act (no. 36 of 1998) §1 (S. Afr.) (indicating that it is
under the authority of the national government to “full obligations set out in
the Act relating to the use, allocation and production of, and access to, water
resources”).
10
Saunderson-Meyer, supra note 1.
11
Policy and Strategy for Groundwater Quality Management in South Africa,
dEP’t of WatER affaiRs & foREstRY ix (2000), https://www.westerncape.gov.
za/text/2003/groundwaterpol.pdf.
12
Id.
13
Saunderson-Meyer, supra note 1.
14
Richard Poplak, What’s Actually Behind Cape Town’s Water Crisis,
thE atlantic (Feb. 15, 2018), https://www.theatlantic.com/international/
archive/2018/02/cape-town-water-crisis/553076/.
15
national WatER act (no. 36 of 1998) § 4(26); see also Amil Umraw,
Cape Town Water Crisis: DA Will be Judged Harshly Say Analysts, huffington
Post (Feb. 19, 2018), http://www.hufngtonpost.co.za/2018/01/19/watercrisis-
drought-or-national-government-failure_a_23337782/?utm_hp_ref=za-news.
16
s. afR. const., 1996. § 27(1)(B).
17
Onishi & Sengupta, supra note 1.
18
See s. afR. const., 1996. § 27(1)(B) (stating that “the state must take
reasonable legislative and other measures, within its available resources, to
achieve the progressive reaslisation of each of [the rights listed under section
27]”); Saunderson-Meyer, supra note 1.
19
See s. afR. const., 1996. § 27(1)(B).
20
national WatER act (no. 36 of 1998) §4(26)(a)-(b), (d).
21
See Tamaryn Africa, #Budget2018: R6 billion allocated for drought relief,
Bus. REPoRt (Feb. 21, 2018 4:15 PM), https://www.iol.co.za/business-report/
budget/budget2018-r6-billion-allocated-for-drought-relief-13404218; see also
Onishi & Sengupta, supra note 1 (stating that for several years Cape Town had
been warned by the Department of Water Affairs about the necessity of diversi-
fying its water supply because its reliance on six rainfall dependent dams was
hazardous with current climate change trends).
22
Africa, supra note 21.
23
Id. (stating that “91.6 billion [rands] would be spent on extending, upgrad-
ing and maintain[ing] water infrastructure [in the 2018-2019 scal year]. Over
the same period 34 billion [rands] would be invested in water services, largely
through municipal grants”).
24
Id.
25
Peter Gleick, Commentary: Cape Town is Running Out of Water. Could
More Cities Be Next?, foRtunE (Feb. 20, 2018), http://fortune.com/2018/02/07/
water-shortage-cape-town-south-africa/ (noting that saltwater desalination can
also provide a short-terms solution).
26
Id.
27
Id.
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