Take Cape Town water crisis to public protector – constitutional watchdog


Cape Town – The City of Cape Town’s proposed water levy should be taken to the public protector free of charge, according to Advocate Paul Hoffman SC, a director of Accountability Now.

This non-profit organisation with Archbishop Emeritus Desmond Tutu as patron, aims to ensure the rule of law is upheld.

In Hoffman’s view, the Cape Town water crisis “can be tested at no cost by complaining to the public protector that there is serious maladministration going on due to the ‘hands off’ approach of the national government and the picking of the pockets of ratepayers which is the City’s strategy for dealing with the crisis”.

He said the Constitution is very specific that water and access to water may be litigated.

“The state guarantees an environment that is not harmful to health and well-being in section 24 of the Bill of Rights. Declaratory, mandatory and supervisory relief is claimable due to the current response of the authorities apparently failing to pass Constitutional and legislative muster,” said Hoffman.

Fin24 reported in November last year that Minister of Finance Malusi Gigabe is of the view that the water challenge in Cape Town shows the need for capable infrastructure to respond to human needs and development objectives.

No justification

There is no justification for the drought charge the City of Cape Town wants to introduce to compensate for the loss in revenue from water saving and lower sales, according to the Cape Chamber of Commerce and Industry.

Capetonians have until January 12 to comment on the City’s proposed water levy.

In a letter of objection to the new levy, chamber president Janine Myburgh said the City should find ways to reduce its costs just as any private sector company would do in these circumstances.

“We reject the idea that some form of surcharge on water users would be appropriate to cover the revenue shortfall. You cannot punish customers for buying less of what the City cannot supply anyway. The water problem is the result of poor Council planning and it is the Council that must pay, not the victims,” said Myburgh.

She pointed out that the City regarded the sale of water as a trading operation to produce revenue. For ten successive years, water tariff increases had been well above the inflation rate and in four of those years the increases had been more than double the Consumer Price Index (CPI).

Valuation of property

The chamber further rejects the idea of basing an extra fee on the valuation of property.

“Many property owners have gone to great lengths to save water. They have installed well points, grey water systems and bought tanks to capture rain water. They are deserving of our gratitude for their water savings, at their own cost, which will mean more water will be available for others. They should be rewarded,” said Myburgh.

She warned the Council that it should brace itself for lower water sales and lower revenue in the future for commerce and industry had made considerable investments in water capturing and water saving facilities and they would be eager to secure returns on these investments in the future.

The situation was similar to the electricity crisis where high tariffs had forced consumers to use power more efficiently and to look for alternatives.

“In these circumstances a new long-term approach to the distribution and sale of water in urban areas is required.

“We urge the City Council to take the lead and set up a team of officials and experts from the academic world and the private sector to devise a plan for the efficient and productive use of water, complete with targets for the recycling of an increasing percentage of water as well as a road map for the increasing use of desalination,” said Myburgh.


Last week Kaapstad Sakekamer (Cape Town Business Chamber) also challenged the proposed water levy. It, furthermore, sees the City’s deadline of January 12 for comments as too soon, since many people would still be on holiday.

In the view of Kaapstad Sakekamer, the provision of bulk water is the responsibility of the national Department of Water and Sanitation.

“It would appear that in Cape Town, in the past, there has been an over-dependence on surface water that is stored [and evaporates] in dams and that recycling water, accessing ground water and desalinating sea water have been somewhat neglected in the decision-making processes that are aimed at ensuring constitutionally compliant access to water for all,” commented Hoffman.

“The days of over-reliance on inaccurate long-term weather forecasts are numbered. Greater rigour is required in dealing with the shortage of water and the use of potable water for purposes that do not require that the water in use be potable.”

He regards the proposed “water levy” the City wishes to implement, as problematic.

“If the drought is regarded as a natural disaster, as it should be, is it not the duty of national government, as acknowledged in the legislation referred to above, to involve itself in the alleviation of the disaster?” asked Hoffman.

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