Municipal Service Partnerships as a legal mechanism for realising the right to have access to sufficient water in South Africa

LLM (Environmental Law and Governance), North-West University, Potchefstroom CampusWater is life. The United Nations General Assembly (UNGA) Resolution A/RES/64/292, 2010, recognises the right to water as a fundamental right that is essential to the realisation of all human rights. Section 27 of the Constitution of the Republic of South Africa, 1996, clearly guarantees everyone a justifiable right of access to adequate water. Although all spheres of government are co-responsible for realising this right, local government, constituted by about 257 municipalities, has direct responsibility for providing water services. In compliance with the obligations imposed on the State by the right of access in the Constitution to adequate water, the national government adopted legislation and policies prescribing minimum standards that must be met by municipalities in water services. The Local Government: Municipal Systems Act (MSA) No. 32 of 2000 makes it possible for municipalities to provide services, including water services, either through internal mechanisms or external mechanisms. The provision by external service mechanisms include Municipal Service Partnerships (MSPs). The legal framework for MSPs is set out in the MSA and the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA). These legislation are complemented by the White Paper on Municipal Service Partnerships (2004), which seeks to ensure that the use of external service providers does not detract from government's commitment to providing universal access to basic municipal services that are affordable and in line with defined service standards. Despite the existence of legislation and regulations that give effect to the constitutional right of access to sufficient water, recent statistics show that about 1,7 million households in South Africa do not have access to piped water while 10 percent of households still rely on water from unsafe sources, such as rivers, streams, wells or springs. This state of affairs is attributed to diverse reasons, including lack of sufficient bulk infrastructure, poor delivery of municipal service, poor maintenance of existing infrastructure and the inability of poor households to pay for the cost of water supplies. This study focuses on how the law and policy framework for MSPs can be used to contribute towards realising the right of access to sufficient water in South Africa. Based on critical and systematic review of primary and secondary law sources, it is argued in the study that despite criticisms on the use of public-private partnerships (PPPs), valuable lessons can be learned from theory to improve the usefulness of MSPs in the provision of water services in South Africa. Benchmarks from a general discussion on the use of PPPs are distilled in this study as a mechanism for providing water services and used in analysing the legal and policy framework for MSPs in South Africa. Based on alignments between distilled benchmarks and the regulatory framework for MSPs in South Africa, the research reveals that the legal and policy framework for MSPs can be successfully used to contribute towards the realisation of the right to have access to sufficient water in South Africa.Master