The North Gauteng High Court's decision in the Carolina matter is another instance of the courts having to push government to do its job.
Some would see this as a vital and encouraging sign of South Africa's constitutional order in action, but recall that the government (not least President Jacob Zuma himself) has previously complained about the courts getting in the way of the executive. We do not want to see "government by court" any more than the state does, but critics of the judiciary in the executive have to be reminded that the courts can push the state to deliver, too.
Carolina was deprived of drinkable water by pollution from nearby industry. Local government proved unable to supply sufficient emergency water, and national government stepped in. It was also unable fully to live up to the state's commitment, in terms of the Water Services Act, to provide such communities with a minimum amount of clean water. The community, as represented by two legal nongovernmental organisations, took the state – at all levels in the water-provision chain – to court to get it to comply with its responsibilities.
Interestingly, in the judgment delivered by Justice Moses Mavundla on July 10, the national department and the minister of water and environmental affairs, though respondents in the case, were not subject to the ruling given (which was, basically: get water to those people within 72 hours). This, said the judge, was because the national department had, in fact, done its damnedest to keep the people of Carolina supplied with drinkable water, had been foiled at local-government level.
After the judgment was made, Water Minister Edna Molewa made a statement that was something more than the usual boilerplate produced by government in response to judgments against it. Not only was there no railing about how the courts had no place telling government what to do, but Molewa also went a little further. It's worth quoting her:
"While the department accepts ... its role as regulator and custodian of water resources ... it is worth noting that in terms of the Water Services Act ... 'Every water services authority has a duty to all consumers or potential consumers in its area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services'.
"The municipalities fall within the definition of water services authorities, and are therefore responsible for ensuring access to water services in their areas of jurisdiction. We have stated this fact in court ... In fact the department, in accordance with its regulatory function, had conducted a thorough assessment of the treatment-plant capabilities and shortcomings in the Chief Albert Luthuli municipality late last year as part of the Blue Drop audits prior to the contamination problem and had made recommendations for urgent improvements."
What the minister is saying, albeit rather gently, is that the national department was on to this problem – that the treatment capacity of local water plants was inadequate. But the responsible local government structures failed to fix it. This is not a matter of passing the buck. Molewa is not shifting blame; she is pointing out to local government that it must fulfil its duties timeously or it will be forced to do so in court. It is one of the few times a national minister has, even in muted tones, criticised state institutions further down the line.
Molewa was certainly endorsing the judge's sense that local government should pull up its socks, which is an important public acknowledgment of state failure, but her response is also positive in that she also affirms her department's commitment to working closely with local authorities and giving them the support they need. We need more of this kind of government. It is like water to the thirsty.