13 April 2024 | 12:32 PM

Construction mafias, corruption and your water — how government is looking to the courts to get the taps running

Key Takeaways

  • “Construction mafias” — in some cases armed — remain widespread, demanding business to let some water infrastructure projects continue, water and sanitation director-general Sean Phillips says.
  • Changes within the department of water and sanitation could see an increased number of municipalities being hauled to court over poor service delivery.
  • Municipal disfunction, says Phillips, is “what keeps me up at night”.

In March last year, minister of water and sanitation Senzo Mchunu admitted to Parliament that many municipalities were failing to deliver on their most basic function: access to water.

“The situation is generally deteriorating,” he warned.

Some consider Mchunu to be one of President Cyril Ramaphosa’s strongest ministers. His August 2021 appointment to the portfolio has been seen as an effort to right the ship after the turbulence under ministers Nomvula Mokonyane and Lindiwe Sisulu. 

The national department oversees the management of South Africa’s water, leading large programmes that manage supply, like the Lesotho Highlands Water Project, or dams that dictate the country’s ability to store water.  

It has little leverage at local level, where delivery should take place but often doesn’t. 

Under Mchunu, the department is considering changes in how it monitors compliance that could see more municipalities taken to court for failing to provide safe, reliable water supplies. 

Also on the cards are amendments to national legislation to enable the department to better intervene in failing municipalities. 

The department’s director-general Sean Phillips sat down with amaBhungane to talk about why so many municipalities just can’t seem to get basic water and sanitation right, what the department intends to do about it, and why people with AK-47s are turning up on construction sites.

You’ve just completed your first year in office. What do you think have been the most significant achievements?

Phillips: “The Department of Water and Sanitation has been through quite a difficult last five or 10 years. It was a site of state capture and we’ve got several cases being investigated by the Special Investigating Unit (SIU). 

For example, there was a case of the procurement of SAP software licenses by the department to be deployed at water boards when water boards already had their own software.

There has been an investigation by the SIU and a long disciplinary case against one of our deputy director generals, who was recently dismissed. SAP entered into a settlement agreement with the SIU and agreed to pay us back about R500-million initially and then another R200-million. So we got back almost all the money spent on those licenses. 

When Minister Senzo Mchunu started in August 2021, he found that the department had a succession of different ministers and a high turnover rate of officials, which caused a lot of instability in the department. 

You could say it also created fertile ground for state capture.  

One of the minister’s priorities was to fill vacancies, particularly top management level … What tends to happen when you have a high turnover rate of ministers and director generals is that each time there’s a change of leadership, there is a change in direction. This means key strategic initiatives don’t get implemented because each time there’s new leadership, they slow things down, review decisions and maybe change them. 

The most important thing that I have helped the minister achieve is to get some decisive decisions made regarding long-standing policies and projects that have been delayed. That includes the Giyani water project, a site of corruption and state capture. There are ongoing SIU investigations into that project as well. 

The Lesotho Highlands Water Project’s delayed phase two was also long delayed and is now on track again, among others.” 

Lesotho has had its own issues in terms of governance. Do you have any concerns about vulnerabilities regarding the Lesotho Highlands Water Project?

Phillips: “There are always trade-offs, risks, options and costs. When you decide to do a project, you need to weigh them up. There are risks to governance in South Africa as a whole as well, just like there are risks to governance in Lesotho. We work closely with our counterparts in Lesotho, both at my level and that of the minister. We have full-time commissioners engaging with their counterparts. 

We did look at technical options of building a large dam in KwaZulu-Natal near the Drakensberg as an alternative. I’m very glad that we didn’t go with that option now because the water would have to be pumped up to Gauteng, whereas from Lesotho it can come down to Gauteng through gravity. 

Imagine with load shedding, if we had to rely on water pumped up from KwaZulu-Natal, that would have been a risk to materialise and a very bad one.”

The department’s latest annual report notes that many local projects to improve water and sanitation face pushback from local business forums or communities that prevent projects from happening until they get a piece of the pie. Some might liken these to “construction mafias.” How big of a problem is this and how does the department deal with it?

Phillips: “It’s widespread and one of our major problems. 

Our approach is that whenever we do a project anywhere we consult widely with community groupings before we start. We inform all of our contractors that they’re going to have to employ local contractors to assist for part of the work, where possible. 

Then we play a facilitatory role as well. We work with the municipality and counsellors to  engage with the community and sometimes our minister or deputy minister engage with community-based organisations. Quite often, there are very high levels of community participation, engagement and deliberate efforts to give some opportunities to local suppliers.

Usually it’s effective. Sometimes it requires political intervention. 

But sometimes despite all of that, certain groupings will insist that they have a right to be given a certain amount of work. 

We’ve had instances where people with AK-47s on our construction sites demanding what they want. Then, our only recourse is the police.”

Where do you feel like opportunities for corruption come in?

Phillips: “There was a lot of corruption here at the department and at our water boards. We’ve been trying to stamp it out and we’ve strengthened the controls a lot.  

Minister Mchunu has been trying to ensure that the water boards are better governed through his appointments of board members.

But in some municipalities, it’s clear that corruption is still a major issue and that it’s one of the reasons why there isn’t enough money to do the necessary maintenance.

If you’d ask me what keeps me up at night, it’s municipalities.”

Many municipalities fail to provide residents basic water and sanitation services. Who is responsible when taps run dry? 

Phillips: “In terms of the Constitution, water is a national and municipal function. There’s no provincial function for water in South Africa. 

The national department’s responsibilities are basically national water resource management and water resource infrastructure — for example, ensuring catchments are well managed. Catchments collect water and feed it into rivers and dams — that’s how we store water, which is how the whole water cycle starts. It’s very important to manage your catchment well and that’s why there are Catchment Management Agencies, because … catchments are not defined politically; they are defined by geography and water systems.  

Now what has happened in reality in South Africa is that most municipalities have appointed themselves as the local water service provider. But, in terms of legislation, there is supposed to be a separation between the water service authority (or municipalities) and water service providers because municipalities are really like local regulators. 

In terms of the Constitution, municipalities are responsible for water distribution. There’s supposed to be a separate unit … which is supposed to monitor the water service providers and make sure they’re doing their job properly. [But] most municipalities haven’t separated this function. Instead, they have just appointed themselves as the water service provider and they’re not adequately regulating or monitoring themselves as service providers.” 

Still, Section 63 of the Water Services Act allows the minister of water and sanitation, in consultation with other departments, to temporarily take over failing water and sanitation services. Why don’t we see more of this?

Phillips: “If you read Section 63 of the Water Services Act, it says that if a municipality is failing to deliver water and sanitation services properly, the minister can issue them with directives, which we do.

If they continue not to fail to deliver water and sanitation services properly, it then says that the minister can intervene and take over the water and sanitation function in the municipality. But again, constitutionally, it would have to be temporary. 

The problem is that it’s not practical because in all municipalities, with the exception of Joburg Water, water and sanitation is an integral part of the whole municipality. There might be a water sanitation department but … all its decisions around procurement, budgeting, maintenance are made outside of the department by the municipal chief financial officer, the municipal manager or the head of the supply chain section.  

It’s not actually feasible for the Minister of Water and Sanitation to just take over a water sanitation department in the municipality. To actually improve the function you would have to have control over other decisions like finance, human resources and procurement, which are under the municipal manager and the chief financial officer. If we were to try and do that, we would quite likely be challenged legally because I don’t think Section 63 enables us to take over a whole municipality. 

We’re looking at revisions to the Water Services Act to come up with something more practical and better ways, legislatively, to enable us to intervene where municipalities are failing.”  

Section 139 of the Constitution also allows the department to intervene in a municipality when it does not fulfill its obligations in terms of legislation. What are the challenges in doing a Section 139 takeover of local water and sanitation? 

Phillips: “In terms of the Constitution, you can do a Section 139 intervention but that has to involve the provincial government, the premier, and the MEC and the minister for the department of co-operative governance and traditional affairs (CoGTA).

Makhanda (Grahamstown) is a good example. There’s been water problems there for a very long time and a succession of these 139 interventions there. For example, there was a former director general of this department who was appointed as the six-month administrator in terms of a 139 intervention in Makhanda some years back and things improved while she was the administrator. 

But then — because it’s not permanent — when she left, things deteriorated again. 

In my personal view is not always the best thing to do because, as I’ve indicated, it’s normally a six-month intervention where you get an administrator in. There’s a limited amount that an administrator can change in six months. Some things — like billing and revenue collection — are very difficult to fix within six months. 

Sometimes it can be more effective to work with the local leadership and support them to put in place an action plan and encourage them to implement that to address issues.

In my view, there’s no shortcuts or easy answers to making municipalities in South Africa work.” 

With all these challenges, what does it look like — right now — to try to fix water and sanitation issues in a municipality?

Phillips: “At the moment, when there is non-compliance, we go through a series of measures with municipalities. 

We have our regulation branch, here at head office, and we have a regional office in each province. 

Most of the monitoring work is done on the ground by our people in our regional offices. They are constantly monitoring all the municipalities. Over and above that, we also have revived the Green Drop and Blue Drop assessments, which assess the quality and functioning of drinking water and wastewater systems in all municipalities. 

When we find there is non-compliance that requires some kind of action to be taken, we issue a notice — or directive — to the municipality. If they don’t adhere to it, we then issue a second or third directive. 

As long as municipalities are trying to improve, we offer them support. 

We also have grants: the Municipal Infrastructure Grant, the Regional Bulk Infrastructure Grant and the Water Services Infrastructure Grant. We can allocate these to municipalities to help them to address infrastructure backlogs. We also offer them support and advice as to how to address the problems. 

If they consistently don’t act on the directives, then we go further and we take them to court and — sometimes — we even lay criminal charges against the municipality or the municipal manager.”  

Why don’t we see more court action against poorly performing municipalities? 

Phillips: “There have been some civil society organisations that have said we’re not frequently or consistently enough using these more drastic steps of, for example, taking municipalities to court or going the criminal charges route. 

We agree.

In the past, it’s been a devolved decision to our regional heads whether to recommend the legal route. They’ve been a bit inconsistent in taking decisions as to when to do what with various municipalities. We’re in the process of developing standardised operating procedures for when we’ve gone through various steps of issuing directives and no action has been taken, then it must be automatic across all the regional offices, that we then go to court.”

How does CoGTA fit into this process?

Phillips: “At a regional level, we have regular engagements with CoGTA and keep them informed about the actions we’re taking. 

In addition to regulatory actions, what’s also been happening under Minister Mchunu is that when we become aware a municipality is performing particularly badly, he’s been engaging in the process. 

He goes to the municipality and meets with the mayor and officials — together with our regional officials — and addresses the problem frankly with local leadership. Then, we collectively draw up an action plan to address the issues, and our regional office helps to monitor progress related to that plan. 

When we do that process, we try as much as possible to involve the provincial CoGTA — they’re part of the meetings and supporting the municipalities.  

Quite often, the challenges that result in water and sanitation issues aren’t just technical water and sanitation issues, they have deeper root causes — for example, weaknesses in governance or management. The municipality might, for instance, have had an acting municipal manager who’s not willing to make decisions for a long time. Alternatively, their billing and revenue collection might be very poor, for example, so that they’re not raising sufficient revenue to do basic maintenance. 

Often, it goes beyond purely water and sanitation issues that need to get addressed.”

amaBhungane is currently investigating cases where crime, corruption and mismanagement have left communities without steady access to water. If your community has gone without water or is reliant on water truck deliveries, let us know. Email us your confidential tip-offs to tipoffs@amabhungane.org.

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