Minimum Core Obligations: Re-evaluating the realisation of the right to water and sanitation in South Africa

Abstract

'May you live, and all your people. I too will live with all my people. But life alone is not enough. May we have the things with which to live it well. For there is a kind of slow and weary life which is worse than death.'

Water is a prerequisite for leading a life with dignity. Water also plays a key role in fulfilling other human rights and alleviating development issues like poverty, food insecurity, water insecurity and ecosystem degradation all of which have been identified in the Sustainable Development Goals, Agenda 2063: The Africa We Want and the National Development Plan 2030 for South Africa. In an attempt to address these deficiencies, this mini dissertation seeks to answer the question, how can the realisation of the right to sufficient water and sanitation in South Africa be improved? In answering this question, an analysis of statistics between different municipalities was done to illustrate the ever-growing disparities in access to water and sanitation in South Africa, despite the robust legislative and policy framework. The statistical analysis revealed that aggregate statistics show that access to water and sanitation has steadily improved since 1994. However, disaggregated statistics show disparities in access between urban and ‘rural’ provinces – Gauteng generally has higher levels of access when compared to the Free State. The disparities also continue at the municipal level, with the larger metropolitan municipalities displaying better levels of access than local municipalities. Worryingly, statistics also show intra-municipal disparities in access. Using the City of Tshwane (COT) as a case study, the more urban areas within COT, like Pretoria, have greater levels of access to water and sanitation than the peri-urban Hammanskraal, whose water is currently unfit for human consumption. It appears that although progress is being made to increase access to water and sanitation, the current provision methods are generating inequality and inadvertently promoting access to and the benefit of water and sanitation to the privileged parts of society, leaving those living in vulnerability behind. Although the concept of the minimum core content of socio-economic rights has previously been rejected in South African courts, I assert that the acceptance of a clearly defined minimum core content of the right to sufficient water and sanitation is the first step in ensuring an adequate and acceptable level of access for all – where adequate and acceptable levels of access are understood to mean ‘sufficient quality and assurance of supply.’ I then reconceptualise the content of the right to sufficient water and sanitation using the minimum core. Consequently, I define the minimum core of the right to sufficient water and sanitation and establish the minimum levels and an accompanying differential minimum. Thus, the minimum core of the right to sufficient water and sanitation is: Access to safe, reliable, and affordable water at a volume of 50 litres per capita per day (l/c/d) of potable water, at a flow rate of no less than 10 litres per minute and within 200m of the dwelling, where supply shall not be interrupted for longer than 48 consecutive hours; and where the minimum level for peri-urban and rural areas can be no less than 60l/c/d. Additionally, the minimum core content of the right to sanitation is access to a safe, affordable, and reliable improved sanitation facility, at the very least, a VIP or an equivalent technology of sufficient quality and assurance of supply, within the vicinity of a dwelling, and accompanied by appropriate handwashing facilities as well as appropriate ongoing health and hygiene awareness and education for communities. Further, I argue that the minimum core content of the right to sufficient water and sanitation should be utilised as the universal minimum standard below which water and sanitation programmes cannot fall. In this way, the progressive realisation of the right to sufficient water and sanitation will be concerned with the continuous improvement of the nature and quality of access, thus moving beyond the minimum levels.