Water policy development in South Africa
L J ABRAMS
Policy Consultant, Johannesburg, South Africa
[Paper written for the Cranfield International Water Policy Conference, Cranfield University, Bedford UK, September 1996]
South Africa is going through a social and political transformation after the first democratic elections in April 1994. With the introduction of a new constitution, all law and policy is being reviewed. This has provided a unique opportunity to the public water sector to review its policy, institutional structure and legislation. This paper set out some of the objectives of policy reform in South Africa and briefly describes several specific areas of policy development which are of importance beyond the country's borders.
Keywords: water, policy, development, government, water supply, sanitation.
The political changes in South Africa, and the emergence of a democratic system based on a new constitution with a strong human rights content, has provided an opportunity for thorough review of policy in all sectors, not least water. Since the first democratic elections in 1994, the policy of government with regards to water has been undergoing a systematic process of change which covers all aspects from the structuring of the Department of Water Affairs and Forestry to a review of the water law of the country.
The chance provided by the political changes in the country has been regarded as a "window of opportunity" by progressive policy makers in the water sector to bring about changes which are long overdue. It is rare that such an opportunity presents itself and a great deal of energy has been spent in the past few years to take full advantage of this period of South Africa's history. The process of policy change in the water sector in South Africa is in mid-stream at present and will take some years to complete. The preface of the Water Supply and Sanitation Policy White Paper  of November 1994 makes the point that the last chapter in policy development is never written. Policy is dynamic - it reflects the changing priorities of society and the government.
National Policy Background
In order to understand the changes which have been made to water policy in South Africa, it is important to have an understanding of the national policy context. The backdrop to all political and development activity is the new Constitution. The present Constitution, which has taken the country through the elections period, is an Interim Constitution arrived at through the negotiated settlement which led to the elections. Since the elections, a Constitutional Assembly of elected persons has been drafting a final Constitution which is soon to be completed. The adoption of a new constitution, to which all law and public policy is subject, means that all such law and policy has to be reviewed and tested against the new constitution.
In the water sector, the introduction of a Bill of Basic Human Rights in the Constitution both demands, and provides the mandate for, far reaching policy change. Numerous sections on equality, human dignity, the rights of children, and, in Section 29, "the right of every person to an environment which is not detrimental to his or her health or well being", require a move away from the policies of the past.
The broad policy framework of the new government is contained in the Reconstruction and Development Programme (RDP). All sectoral government policies and strategies are required to conform to the principles and strategies of the RDP. The RDP is designed to redirect public sector spending and the ethos of the public sector as a whole from the practices of the apartheid era to the new ethos contained in the Constitution.
The two main objectives of the RDP are to attain both equity and economic growth. These objectives need to be regarded in the light of the enormous poverty in the country and the fact that South Africa has the largest extreme of wealth to poverty disparity of any nation in the world. Some may argue that the simultaneous attainment of both equity and growth is not possible because of the scale of public spending that the first implies and the effect that this has on the economy. An initial reaction may be that the two objectives are mutually exclusive of each other. This is perhaps the biggest challenge to the policy makers - to ensure that the way in which each objective is pursued does not undermine the pursuit of the other objective. This is not to imply the old paradigm of assuming that equity will follow growth (the now generally discredited "trickle-down" theory). A new paradigm is being put into play based on the belief that growth is dependant upon equity; that economic stability and investment confidence is not possible in the midst of poverty and its associated anguish, crime and social disorder; and that infrastructure development is in itself the creation of real assets and constitutes growth.
Previous water sector government policy
Water resources management
South Africa is a semi-arid country with unevenly distributed rainfall (43% of the rain falls on 13% of the land) and with high annual variability and unpredictability. In the latter half of the last century and the early years of this century, the primary use of water was for agriculture, and the governments of the period concentrated on provision of water for irrigation. By the mid 1900s the demand for water was beginning to shift towards the needs of a growing industrial economy; however the growth areas did not coincide with the availability of water. The industrial heartland of the country, the areas surrounding Johannesburg, is situated in an arid zone and straddles a continental divide. As a consequence, inter-basin transfer schemes, which are amongst the largest in the world, have been developed .
The policy and functions of the Department of Water Affairs and Forestry prior to the 1994 elections were constrained exclusively to water resource management. This included the management of the larger catchments, the administration of government water control areas, the supply of bulk untreated water to water boards (bulk treated water supply utilities), water quality management and the administration of the Water Act.
The Department did not regard itself as responsible for ensuring that citizens had a water supply and had no political mandate for such responsibility. Furthermore, the country was divided, starting in the 1960s, into nominally independent "homelands" as a consequence of the apartheid separate development policies, and the central Department of Water Affairs and Forestry had no jurisdiction in these areas. These were generally the more arid parts of the country where 75% of the population subsisted on 13% of the land. These areas became increasingly poverty stricken over the years with little or no effective service provision.
The water sector consequences of these policies have been far reaching. Not only are there an estimated 12 to 14 million people without any formal water supplies and 21 million people without formal sanitation services (out of a total population of 41 million), but there are also serious environmental effects of poverty which impact on the water resource base in the country. These include encroaching desertification, deforestation, substantial loss of topsoil, widespread diffuse pollution, invasion of alien plant species and other factors which result in reduced groundwater recharge potential, increased siltation of limited storage facilities and increased danger of periodic serious flooding. All of these are now being experienced in South Africa.
The country has also faced cyclical periods of extreme drought which the poor majority is ill-equipped to resist. Without formal services of known capacity and reliability, and without responsible and capable authorities, rural communities have been left to fend for themselves. This has generally had the effect of further increasing the depth of poverty in rural areas and increasing urban migration.
These are the somewhat daunting realities which face the policy makers of the new order in South Africa.
Importance of policy development
The new government in South Africa and particularly the new Minister of Water Affairs and Forestry, together with their policy advisors, recognised very quickly that there was an urgent need for new policy in the country. New policy had to be developed for several reasons:
To provide clarity to the sector
Because of the fragmented nature of South African society which existed at the time of the political changes, all sectors were in disarray, including health, education, housing, employment, infrastructure and specifically water. There were no guidelines or common policy and as a result both the public sector and the private sector were confused and lacked direction as to how to begin to tackle the meeting of the vast needs of the people. One of the first tasks of the Ministry of Water Affairs and Forestry after the elections in April 1994 was the drafting of a White Paper on Water Supply and Sanitation which, after the holding of a national consultative conference, was published in November 1994.
Although the document was produced in a very short period of time, a great deal of effort went into its production. The position adopted was that it was more important to make clear policy available to the sector as a whole than to take months debating the finer details.
The policy has proved very effective and has been heralded throughout the country and abroad for its clarity and insight into the problems facing the country and how they should be addressed. The specific areas which have been most helpful have been clarity on service levels, the definition of the minimum standard, policies on payment for services.
To reduce institutional fragmentation
The framework of institutions responsible for water resource management and water supply in the past was extremely complex with numerous areas of overlap and conflict and, as has already been mentioned above, with many areas remaining unserved. There were eleven "governments", provincial structures, regional service providers, water boards, local governments and a large number of NGOs.
The institutional framework for the water sector was in urgent need of simplification and clarification which the White Paper sought to provide. Water is regarded in the new policy as an indivisible national resource. In terms of the Constitution, the central government is the custodian of the nation's water and the national Department of Water Affairs and Forestry has two primary functions :
to manage the country's water resources, and
to ensure that all people have an adequate water supply and sanitation service.
The responsibility, in terms of the Constitution, for the supply of water is that of local government. It is important to note that whilst local government has the responsibility of supplying water to consumers, it is the central government's function to ensure that this happens in terms of the norms and standards described in the government's policy. Where local government fails to perform its function, the Department of Water Affairs and Forestry is empowered to take direct action to strengthen local government and temporarily perform the functions of local government.
Policy to enable the Department to delegate national water resource management functions to statutory catchment management structures is presently being developed. This is to ensure a more integrated approach to resource management and a greater participation of people at local level.
Water Boards have been a long standing institutional mechanism to provide treated water to large consumers in bulk. In the past this has mainly been in urban areas . The objectives of new policy with regards to Water Boards are :
|1st tier||National government (Department of Water Affairs and Forestry)||Water resource management, support to local government, setting of norms and standards, monitoring and administration of the Water Act.|
|2nd tier||Water Boards||Supply of bulk treated water on a commercial basis.|
|3rd tier||Local government||Supply of water and sanitation services to consumers.|
To create a framework for investment
Clear policy provides a basis for investment in water sector infrastructure. The share of the national budget previously enjoyed by the Department of Water Affairs and Forestry was 0.3%. With the establishment of clear policy and a commitment to achieve the policy objective of "Some for all rather than all for some", the Department has been able to substantially increase its share of the budget to more than double its previous level in less than 18 months. Clear policy has enabled a relatively rapid deployment of funds which, for a government department, is advantageous and tends to attract increasing funds.
The policy is that the government will provide capital grants for the construction of basic services which are defined as a water supply of at least 25 litres per capita per day at a maximum cartage distance of 200m and of adequate quality. The grant includes finances for the training of communities to undertake the governance, administration, operation and maintenance of the water services as a local government function. All recurring operation, maintenance and administration costs are to be borne by the communities. If communities desire a higher level of service, they must find the finance elsewhere than from the government.
Strict adherence to the policy has had the effect of building confidence in the sector and attracting local and international private sector finance.
To provide an avenue for the outworking of political objectives
The highest priority of rural citizens in the country, who constitute half of the population, is water. The importance of meeting the post-apartheid expectations of the majority of the population goes beyond party political interests. Apart from the moral imperative to alleviate the plight of the poor, the normalising of South African society and the establishment of peace and prosperity is at stake, and ultimately democracy itself. Clear policy is the first step towards implementation at scale, without which development strategies cannot be established. Without clear policy, the political will to genuinely address the problems cannot be easily generated, although political will and policy formulation present a classic "chicken-and-egg" dilemma.
The importance of the process
One of the facets of the present policy making process in South Africa is the concentration on public participation. Before a White Paper, which represents official government policy, is published, it has become practice to prepare a discussion document (usually referred to as a Green Paper). This is referred to as wide a group of interested parties as possible throughout the country and is often the topic of regional and national workshops and conferences. Special attention is given to the inclusion and briefing of those sections of the population which have not previously been engaged in such processes because of past discriminatory policies.
The importance of policy development can therefore be clearly seen in the South African context. Those sectors where policy has not been developed have clearly suffered as a result, such as in the housing, health and education sectors.
Current water sector policy development in South Africa
The White Paper on Water Supply and Sanitation published in November 1994 was the starting point in the review of water policy in South Africa. The policy principles around which the policy was based are:
- Demand driven and community based development
- Basic services as a human right
- "Some for all" rather than "all for some"
- Equitable regional allocation of development resources
- Water has economic value
- The user pays principle
- Integrated development.
- Environmental integrity.
The document was written in a clear, common-English style and has been well received. Some 35 000 copies have been distributed on a demand basis which far exceeded expectation. It has formed the standard for subsequent policy documents both within the Department of Water Affairs and Forestry and within other departments.
Water demand management
As stated earlier in this paper, South Africa has a semi-arid climate. The basis of water resource management in the past has been a supply driven ethos whereby the role of the Department was to supply water for agriculture and industrial demands as and when they arose. This led to an unrealistic public assumption that water is always available in plentiful supply and that, even though there may be droughts, "a plan could always be made" to ensure the unfettered use of water. One of the main contributing factors to this ethos is the pricing structure of water and the legal framework which defines certain water as "private" and is based on the riparian rights principle. This, together with the political requirement to retain the support of the white farmers who owned most of the land in the country, has led to water being seriously undervalued and there being a general lack of conservation awareness in the country.
Policy is currently being developed which is aimed at establishing a demand management ethos in the country. This flows out of a national water conservation campaign which was launched in early 1995. The policy will be aimed at the various water user sectors in South Africa including:
- Domestic and municipal 12 %
- Industry 7.6 %
- Mining 2.7 %
- Power generation 2.3 %
- Irrigation 50.9 %
- Stock watering 1.5 %
- The environment 15.5 %
- Forestry 7.5 %
The policy will be widely consulted amongst the stakeholders in order to ensure broad acceptance and compliance. Issues to be addressed will include:
- tariff and levy policy as demand management tools
- specific policy relating to agricultural use of water
- specific policy relating to "wet" industries
- standardised water supply regulations and by-laws for the construction and plumbing industry
- retrofitting programmes
- public communication and awareness creation, particularly in schools
- loss management policy
- related land-use policy
- the impact of alien plant species in catchments
- water using appliance labelling policy
The Department of Water Affairs and Forestry has been involved in reviewing its policies regarding the pricing of water for the past 18 months. The price of water sold from government water works is set each year in April. Water is seriously undervalued in South Africa. This tends to mitigate against water being viewed as an economic good and hence being valued and conserved as it should be in a semi-arid country.
As pricing and tariff policy is developed, the underlying objective is to balance the three factors of price, cost and value of water. The price of water must reflect its cost whilst at the same time reflect that water is not only an economic commodity but also a social commodity closely related to other factors such as health and production. The price of water must therefore reflect the difficult tension between equity and economic sustainability. The cost of water should be carefully determined so as to reflect the full value of water to society, including the opportunity costs and social costs of a particular usage, over-and-above the direct costs. The adjustment of water prices to the point where they begin to reflect the full cost and value of water in South Africa will have to be done at some point if we are to continue to develop, but this will be politically difficult in the short term. Clear policy is required in order to inform the public of the processes, and careful study will have to be done to fully understand the implications of new policy on the economy as a whole and of the meeting of basic water supply needs.
Water quality management
Because water is a scare resource, water quality management becomes increasingly important in order to conserve the existing resources. The water quality vs development debate is common to most countries and, whilst various models are being reviewed at present, there is as yet no formal government policy document on the issue. The underlying perspective which is emerging through the policy which has already been developed, both in the Water Supply and Sanitation White Paper and in the Water Law Review Principles, is that the environment should be regarded as the resource base on which all development depends. It should not be regarded as a competitor for water allocation along side other competing interests - it is the source from which all other users derive their water. Implementing such a policy in practice still requires difficult decisions and objective tools are needed to implement the policy in the field. The Receiving Water Quality Method is one such tool which is presently being used in South Africa.
Although sanitation is discussed extensively in the Water Supply and Sanitation White Paper, the White Paper acknowledges that a thorough process is necessary to develop a comprehensive national sanitation policy and an implementation strategy which will begin to address the backlog of services on the most basic level throughout the country. Such a process was begun in mid 1995 through the bringing together of senior politicians and public servants from a number of Ministries and Departments to provide a mandate to develop comprehensive policy, hosted by the Minister of Water Affairs and Forestry.
Sanitation traditionally receives low priority as a development issue although it has a profound effect on development potential and on poverty alleviation. One of the reasons for this is lack of co-ordination amongst public bodies concerned with the issues and another is the development of a viable institutional framework to promote and implement policy. The establishment of a multi-departmental Task Team to develop policy with the necessary political support was therefore regarded as essential to the policy development process. The following departments have been included in the process:
- The Department of Water Affairs and Forestry,
- The Department of Health
- The Department of Land Affairs
- The Reconstruction and Development Programme within the office of the Vice-President
- The Department of Finance
After extensive nation-wide consultation based on a Green Paper (a discussion document), a White Paper on Sanitation is nearing completion. This sets out policy on appropriate sanitation technology, the engagement and capacity building of communities, the popular promotion of sanitation, financing options, institutional arrangements and a national sanitation development strategy. It is anticipated that this document will be to the sanitation problem what the White Paper of November 1994 was to water supply.
Local government support
On 1 November 1995 the first democratic local elections were held in South Africa in all but a few areas. This marked a new era of challenge as many areas, particularly those areas which formed the previous black homelands, had never had any form of local government. It is the constitutional function of local government to provide services to local consumers and the constitutional responsibility of the central government to ensure that this is done within the broad national policy framework and to acceptable standards. Because it will be some years before local government will be fully functional, especially in rural areas, the Department of Water Affairs and Forestry will have a role in the medium term in supporting local government. The challenge will be to do so in a way which does not build a large central bureaucracy at the same time as disempowering people at local level. Policy is therefore currently being prepared to guide the relationships between the two tiers of government and to clearly set out the functions of the different institutions.
Regulatory framework for private sector engagement
There exists a dilemma in South Africa in that, although there is a weak rural local government level, there is enormous demand, and, compared with the rest of Africa, a very well developed private consultant and construction sector. There is scope for a creative relationship between local government and the private sector through such arrangements as delegated management concessions. The problem, however, is that there exists the possibility in such unequal relationships for exploitation and corruption. Also, because of the lack of experience of local government personnel and the need on the part of the private sector for investment security, many potentially promising arrangements are not forged. In order to meet these concerns a regulatory framework is being designed in order to set standards and provide an "enabling" environment to create sound relationships between the various parties.
Water law review
The interplay between legislation and policy is a topic in itself which is worthy of research. Legislation provides the mandate for the activities of the public service, whereas policy reflects the priorities of the government of the day. The existing Water Act (1956) has for many years been regarded by many experts as in need of review. As new policy is being developed, both to account for the needs of a modern developing industrial economy and to ensure equity for those who do not enjoy services at present, it has become increasingly clear that a complete re-writing of the Water Act is necessary.
A great deal of work has been done towards the preparation of a new Water Act, both the process and the contents of which are beyond the scope of this paper. Once again the opportunity for a review of the water law is presented by the present unique period in South Africa's history. The initial phase has been the drafting of a set of principles on which a new law will be based. These are divided into 7 sections :
- The water cycle - all water is part of the hydrological cycle.
- Legal aspects of water - all water, as part of the hydrological cycle, should be treated similarly before the law thus eliminating the concepts of private water and riparianity as the primary criteria for apportionment.
- Water resource management priorities.
- Water resource management approaches.
- Water institutions - opening the possibility for the establishment of catchment management institutions.
- Existing water rights - to ensure that the new law is constitutional.
- Water services - to ensure the achievement of equity through a new law.
The objective of this paper is to give a brief insight into a rapidly changing field of policy development in the new South Africa. It is possible only to summarise the process which is in mid-stream and continuously changing. The implications, however, are far reaching and of interest beyond the South African situation alone.
1. Department of Water Affairs and Forestry, South African Government (1994) Water Supply and Sanitation Policy White Paper.