SAHRC FINDS AGAINST FIVE FREE STATE MUNICIPLITIES IN WATER AND SANITATION PROBE.

10 July 2013

These findings are in the context that the SAHRC has been consistently working on the rights to water and sanitation since 2009. In its first two complaints the SAHRC linked local government accountability to the responsibility and accountability of national government. It requested that the DPME in the Presidency provide a report on the status of the right as well as Government's plan to redress the problems. Both these reports have now been received and the SAHRC will be meeting all the relevant departments to discuss how Government will implement the recommendations arising out of the SAHRC provincial hearings.

Further to the 5 water and sanitation investigations in the Free state, the Commission is also monitoring the status of water and sanitation in Moqhaka Municipality where complaints of water and sanitation were received.

The Commission is also investigating complaints in other provinces. In the Eastern Cape the Commission is dealing with water and sanitation-related complaints around lack of access to water as well as a lack of access to sanitation. The latter complaint alleges that raw sewerage is spewing out onto the streets of Mthata.

In Mpumalanga, the Commission is dealing with approximately eleven complains relating to a lack of access to water and sanitation in various districts. In Limpopo we are investigating eleven such complaints.

In the Western Cape, the Commission has recently undertaken an investigation based on complaints from communities in informal settlements in Gugulethu, who alleges that they have not received sanitation services since April this year.

These are all ongoing investigations that the Commission is treating with the necessary urgency.

FINDINGS

The South African Human Rights Commission has completed its investigations into water and sanitation situation in five (5) Municipalities in the Free State Province. We have invited you today to release the findings and to launch the reports.

The Commission's five reports deal with complaints investigated in the following municipalities: Dihlabeng Local Municipality, Setsotso Local Municipality, Metsimetsi Local Municipality, Masilonyana Local Municipality and Mangaung Metropolitan Municipality.

1 Mangaung Complaint.

This Complaint was received on from residents of Sibuyile Park informal settlement situated in Mangaung, Bloemfontein.

The Complainants allege that the Mangaung Metropolitan Municipality failed in its constitutional and statutory obligations to, among others, to provide basic services such as sufficient water, sanitation and refuse removal since 1989; to provide access to adequate housing;

Summary of findings

1. Right to dignity: The deprivation of basic municipal services and the lack of provision of ablution facilities to residents of Sibuyile Park constitute a violation of their right to human dignity. Depriving people access to basic toilet and sanitation facilities is an affront to their dignity.

The complaint of a violation of the right to human dignity is upheld.

2. Right to environment & health: The lack of refuse collection or refuse removal service by the Municipality has resulted in huge volumes of all types of waste being left in open spaces for lengthy periods of time. The uncovered waste is smelly and attracts flies and other vermin. It poses serious environmental and health risks.

The complaint of a violation of the right to environment and health is upheld.

3. The right to housing: The failure of the Respondent to make an application to the Provincial Government for the proclamation of the area as a township establishment has resulted in residents not being provided with formal housing. Despite the area having a clear demarcation of yards, the Respondent has made no provision for formal housing in the settlement.

The Complaint of a violation of the right of access to housing is upheld.

4. The right to water: The Complainants alleged that communal taps provided by the municipality cannot sufficiently meet the basic needs of the residents. As a result residents have to walk for some distance and stand in queues to fill water containers.

The investigators noted that an additional five (5) taps were installed in the informal settlement for approximately sixty (60) households. These taps are adequate in the interim pending relocation or proclamation of the area as a township. The taps are within the minimum legal requirement of 200 metres walking distance.

Recommendations

 Human Rights Violations: The Respondent is directed to realise these rights within its available resources by taking positive steps to ensure that priority is given to the basic needs of the community of this informal settlement and that each member of the community has access to basic municipal services pending the upgrading of Sibuyile Park. The interim services should consist of Access to one chemical toilet per household; Access to a regular and reliable refuse removal service; and Access to more water standpipes within 200 metres walking distance from the nearest shack.

The Municipality is further directed to, among others:

• Furnish the Commission with a phased Plan on how it intends to progressively realise this objective. This Plan should be submitted to the Commission within 6 (six) months from date of this finding; thereafter, the Respondent is directed to
• Furnish the Commission with a progress report at least every six (6) months in respect of the progressive realisation of the right to water and sanitation services in all informal settlements under its jurisdiction. The report to the Commission should demonstrate the following Clear bottom-up and consultative planning and implementation plans; Interim measures for the provision of sanitation to the residents; Effective structures and platforms to ensure improved consultation and dissemination of information from the Municipality and the Residents on the issue of formalisation, sanitation and access to basic services.
• Furnish the Commission with a Plan to make application to the Provincial Government to upgrade the informal settlement in terms of the National Housing Code. The Plan to be submitted within (3) months from the date of this finding. The Respondent should provide the Commission with the following:

The Commission directs the COGTA (Free State) to take active measures to review the effectiveness inter-governmental collaborative links between national, provincial and local with respect to Upgrading of Informal Settlements, and furnish the Commission with a Report on this request, within 6 (six) months of date of this finding.

The Free State Department of Human Settlements is directed to assess infrastructural and housing development needs of communities in informal settlements in the Free State, and furnish the Commission with a Report within 6 (six) months of the outcome of its consideration.

The Municipality is further directed to engage with the community on resettlement plans or relocation to an agreed formalised and well-developed area.

2 Masilonyana Local Municipality

The Complaint was received alleging that there was a water crisis in the Masilonyana Municipality, and that the Municipality was in violation of the constitutional rights of the residents of Theunissen to enjoy access to adequate supply water; that the supply of water provided by the Municipality to the residents was discoloured, contaminated with visible debris and unsafe for human consumption.

They further allege that the Municpality is unavailable to engage with the community, and information to the community was not forth-coming.

Summary of findings

The Commission finds that the Municipality, albeit for a limited period of time, violated Complainant and the surrounding community's right to access to adequate drinking water.

And based on the laboratory findings of the University of the Free State, the Commission finds that the Municipality did not violate the right of residents of the Theunissen to safe drinking water.

Based on patent observation of water samples taken from the area by the Investigation Team, the Commission finds that whilst the water supplied by the Municipality was safe for consumption, it was nonetheless contaminated and contained micro-organisms that constituted a nuisance, at the very least.

Recommendations

Based on the finding that the Respondent has fallen short of the required threshold for the indicators in both 2011 and 2012 Blue Drop Reports, of its standards and quality guidelines, the Commission recommends that the Municipality provides the Commission within a period of three (3) months of the date of this finding, with a Report that indicating interim measures the Municipality has put in place within the Municipality to address access to water challenges for residents of the Municipality, especially women, children and other vulnerable groups; provides the Commission, within a period of three (3) months of the date of this finding, with a Report that sets out immediate measures that the Municipality is taking to remove impurities, discoloration and micro-organisms from the water supply to residents of the Municipality; that the DWA continue to monitor the water supply conditions as well as the water supply facility infrastructural conditions on a regular basis, and take regular water samples from the MLM for testing to ensure that the water supply is of a safe and clean quality.

That DWA provide the SAHRC with a detailed report within a period of six (6) months of the date of this finding in respect of measures put in place to ensure that the challenge of adequate supply of water is progressively resolved.

That DWA provides the SAHRC with a bi-annual Report indicating the progress that has been made towards the progressive realization of the right to adequate water supply to residents of Theunissen.

3 Dihlabeng Local Municipality

1. The Complainant alleged that the Municipality has violated the rights of the residents to human dignity and to a clean environment, health, and privacy in that it had failed and/or refused and/or neglected to provide residents with adequate access to basic municipal services, including solid waste removal, water and sanitation.

Further, that the Municipality had violated the resident's right to access information in that the Respondent has not been transparent and forthcoming with information that affects the community.

The Complainant further alleges that the Municipality has violated the rights of the residents to housing in that it had failed and/or refused and/or neglected to make an application to the Provincial Government to formalise Maseko Section informal settlement and attempted to evict the residents from the land that they occupied for years.

Summary of findings

The Municipality failed to adequately conceptualize, plan and implement its project, which resulted in the residents being forced live in an undeveloped area with no municipal services and infrastructure;

The Municipality's submission that they are not responsible for the delivery of housing and that housing is the responsibility of Provincial and Local Government is not justified and is unacceptable and goes against their own Housing Plan;

The Municipality's further submission that the area cannot be developed contradicts the Municipality's application for funding which includes Fateng Tse Ntsho as an area to be developed as well. This submission by the Municipality is also contrary to the Municipality's Housing Plan which also includes Fateng Tse Ntsho as an area to be developed, no where do these two documents make mention of the area not being suitable for development.

On violations to the rights of human dignity, privacy, a clean environment, housing, health and access to information: these complaints are upheld. The provincial and national government departments have not adequately monitored the work of the Municipality or intervened in respect of their legislative and Constitutional obligations.

Recommendations

The Municipality must furnish the Commission with a detailed report on why they state that it is not their prerogative to apply to the Provincial Government for proclamation of Maseko as a township despite a High Court Order advising them to do so within three (3) months of date of this finding.

The Municipality is required to provide the Commission with the framework through which meaningful and ongoing consultation with the community will be undertaken. To this end, the Municipality is directed to furnish the Commission with the minutes of every community meeting held at least every three (3) months in respect of development in the municipality relating to access to water and decent sanitation services.

The Municipality is required to provide the Commission with a detailed plan and report on the area they intended to relocate the residents to, this report must demonstrate among others the following: budgetary plans; measures for the provision of sanitation to the residents and basic municipal services including water; and the manner in which it will identify and respond to the rights of vulnerable groups like women, children and people with disabilities. 

4 Setsoto Local Municipality

The Complainant alleges that the Municipality has violated the rights of residents to human dignity, privacy, a right to a clean environment, health, and the right to access information by installing toilets that are inadequate, dysfunctional and of a sub-standard nature.

Summary of findings

The Municipality has violated the right to dignity and the right to a clean environment in that the Municipality had installed toilets that are of a substandard nature and which do not comply with minimum standards.

The Municipality failed to adequately include affected citizens in (or inform citizens of) the conceptualization, planning or implementation of its sanitation projects, thereby violating the right of citizens to access information.

The Municipality in allowing citizens to use outdoor toilet facilities violated the rights of residents to privacy and security of person. Access to adequate sanitation is fundamental to personal dignity and security.

The Municipality, in failing to put in place systems for the regular removal of human waste from the premises of residence, violated the rights of residents to clean environment and health;

The provincial and national government departments have not adequately monitored the work of the respondent or intervened in respect of their legislative and Constitutional obligations.

Recommendations

The Municipality is required to complete the toilets in Matwabeng to allow for proper usage and enable people to have their rights to dignity restored and their basic sanitation needs met.

To this end the Respondent is required to furnish the Commission with a progress report at least every six (6) months from the date of this finding; and further to, furnish the Commission with a progress report at least every three (3) months in respect of the progressive realisation of the right to water and sanitation services in Matwabeng.

The report to the Commission must demonstrate the following the Municipality's implementation and budgetary plans; Interim measures for the provision of sanitation to the residents; the manner in which it has identified and responded to the rights of vulnerable groups like women, children and people with disabilities.

The Municipality is required to provide the Commission with the framework through which meaningful and ongoing consultation with the community will be undertaken. To this end, the Municipality is directed to furnish the Commission with the minutes of every community meeting held at least every three (3) months in respect of development in the municipality relating to access to water and decent sanitation services.

The Department of Cooperative Governance and Traditional Affairs (COGTA) is directed to provide the Commission with a report and a detailed plan on strategies intended to deal with challenges and a report setting out strategies setting out clear timeframes for operational and capacity shortcomings of the Municipality. The report should be furnished to the Commission within three (3) months from date of this finding.

5 Masilonyana Local Municipality

Background to the Complaint

The complainant alleged that the Municipality has failed and/or refused and/or neglected to provide residents of the Municipality with adequate, clean and safe water supply.

Summary of findings

Right to water: The SAHRC finds that the Municipality has violated the rights of the residents in that it has failed and/or neglected to take reasonable steps to provide the residents with interim supply of clean and safe water for domestic purposes;

Right to clean environment: The SAHRC finds that in failing to notify the Residents about the possible contamination, and not providing and implementing sufficient emergency relief the Municipality has violated the rights of the residents in that it has failed and/or neglected to take reasonable steps to provide the residents with an adequate supply of clean and safe water;

Right to human dignity: Access to water directly impacts the right to dignity. The inadequate access to water had a disproportionate negative effect on women as women are ‘often singly responsible for child-care, cleaning the house, washing, cooking and washing dishes. This insufficient access to water increased women's vulnerability to sexual exploitation due to unsafe location of the taps for women. Water and sanitation should be physically accessible for all people including women. Girls were also overburdened with responsibilities of collecting water taking precious time away from studies.

The SAHRC finds that the Municipality by facilitating the provision of emergency relief such as portable water which resulted in residents having to walk 3km every day alternatively be left without water to bath, to cook or for sanitation purposes, has violated the right of the residents to human dignity. The disproportionate burden women bear in the collection of water should be alleviated.

Right of access to information

The lack of effective communication between the Municipality and the community and the inability to disseminate information about plans to ameliorate their access to basic water services and general lack of information upholds the complaint of a violation of the right to access to information.

Recommendations

The Municipality to furnish it with an operations and maintenance plan required to run water supply in an efficient, effective and sustainable manner to address access to basic water challenges facing residents of the Municipality, especially women, children and other vulnerable groups within a period of three (3) months from the date of this finding;

The Municipality is required to enhance community participation and demonstrate some level of transparency in its governance by convening regular feedback sessions every three (3) months relating to the supply of water to residents. A copy of the minutes to be submitted to the Commission.

The Department of Water Affairs to furnish the Commission with a report on capacity building support provided to the Respondent relating to supply of uncontaminated water to residents of the Municipality within six (6) months from the date of this finding;

The Department of Water Affairs is further directed to continue to monitor the water supply and infrastructural improvement programmes of the Municipality and to take regular water samples for testing to ensure supply of safe and clean water.

These finding and recommendations have been forwarded to both the complainants and the above-mentioned Municipalities. The Commission has given the respondents XXX days to appeal.

The Commission would like to point out that it is conducting investigations around water and sanitation across the country in all the nine (9) provinces.

Statement issued by Isaac Mangena, Head: Communications, SA Human Rights Commission, July 10 2013

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