Shortages of water are becoming common place. The question is to what extent do provincial and/or national government play a role? The Constitution prescribes that national and provincial governments have the legislative and executive authority to see to municipalities’ effective execution of their functions.

First, one has to consider Section 154 of the Constitution, which stipulates the duty of provincial and national government to monitor the performance of local government. This includes measures where the member of the executive council (MEC) for Local government may require municipalities to submit information about a specific municipal function (which is an executive obligation), he or she can request more information, investigate the matter or even organise a public hearing into the matter. The MEC may also choose to assume the responsibility of the municipality and in the process, take over the relevant obligations of the municipality. In other words, where a municipality fails to deliver water services, the provincial MEC for Local Government may assume the responsibility for the delivery of water services.

The Water Services Act 108 of 1997 (“WSA”) likewise recognises that it is the duty of all spheres of government:

• to ensure that water services are provided in a manner that is efficient, equitable and sustainable; and

• to strive to provide such services for subsistence and sustainable economic activity.

It states that although municipalities have the authority to administer water services, all spheres of government have a duty, within the limits of physical and financial feasibility, to work towards this objective.

In terms of the National Environmental Management Act 107 of 1998 “NEMA”), provincial governments are obliged to ensure that municipalities exercise their functions in line with national and provincial environmental implementation and management plans. Both these plans have specific reporting obligations in terms of compliance with policies, plans and programmes; national norms and standards and the NEMA principles. Failure by a local government to comply with such plans may result in a notice to rectify the non-compliance. Failure to comply with such a notice may result in provincial supervision in terms of Section 139 of the Constitution.

The monitoring functions of national and provincial government are, in terms of the WSA, enforceable obligations. Specific obligations by national and provincial government in relation to water services include:

Cooperation:  The Municipal Structures Act provides for cooperation between district and local municipalities through mutual assistance and support in financial, technical and administrative sectors.

Funding and capacity building:  The Municipal Structures Act 117 of 1998 provides that the MEC for local government in a province must assist a district municipality to provide support services to a local municipality. 

The Municipal Systems Act 32 of 2000 has similar provisions in that a cabinet member, deputy minister or MEC initiating national or provincial legislation in terms of which a function or power is assigned to a municipality must take appropriate steps to ensure sufficient funding and capacity building initiatives as may be needed. 

The Municipal Infrastructure Grant is a consolidated conditional grant to municipalities. It is designed to facilitate the eradication of basic services backlogs and cover the capital costs of infrastructure rollout to predominantly poor households. 

The Local Government Equitable Share is an unconditional grant from national government to local government that serves as the main subsidy for operational and maintenance costs. 

In terms of the Local Government Municipal Finance Management Act, 56 of 2003 national and provincial governments must further assist municipalities in building their capacity for efficient, effective and transparent financial management. National and provincial governments must support the efforts of municipalities to identify, avert and resolve their financial problems. 

Special provision is made in terms of the WSA for the provision of management services, training and other support to water services institutions through water boards. Although these are corporate bodies, water boards are established and monitored by the national Department of Water Affairs. The minister of that department can instruct a water board to undertake specific activities to capacitate municipalities.