Methodology

The water crises in the Vaal River region and the court actions they led to were widely reported in the South African press beginning in the mid-2000s. The narrative of regulatory breakdowns in Section II of this article relies in part on news reports and the records of court hearings, while the more technical details of the account rely on work done by Cultural Dynamics of Water (CuDyWat), a multidisciplinary research group based at North-West University in Vanderbijlpark, South Africa. I was able to benefit from CuDyWat's existing access to the water management facilities in the region and its members' technical expertise in analyzing and identifying problems in specific water management facilities.

The analysis in Section III of the article is based on the public records and court documents referred to above, supplemented by primary research in the form of participant observation and semistructured interviews. I attended a multiday, workshop-style meeting of municipal officials, academics, private service providers, and expert consultants working in the field of environmental health in the Vaal River region, proceedings of which included formal presentations of research reports (Tempelhoff Reference Tempelhoff2012), summaries of environmental health projects in specific municipalities (Nel Reference Nel2012), and reports by both provincial (Mokgatlhe Reference Mokgatlhe2012) and national (Loate Reference Loate2012) governments. Presentations were followed by question-and-answer sessions and informal discussions, both of which were rich sources of data.

I followed up by conducting semistructured interviews with a mostly self-selecting group of municipal officials. Although I approached eighteen officials responsible for environmental health or water services in the region, only five agreed to speak with me. The rest did not respond to e-mails or phone calls, or refused to meet with me despite assurances I would not identify them in any published work. The officials who did speak with me did so in their official capacities and met with me inside official government buildings. I have not used their real names or official titles here.

In conducting interviews, I followed a predetermined list of questions (see the Appendix), departing from the list to pursue promising lines of inquiry prompted by interviewees' answers. I sought answers along three main lines of inquiry. The first was how officials understood the legislation governing their conduct, both in terms of day-to-day procedures and the broader normative objectives of that legislation. Second, I asked officials to assess whether their municipality's performance was congruent with governing law. Finally, I asked officials to identify challenges to meeting the objectives of the water law framework.

These interviews are not a representative sample of local government officials in the region, for reasons explained above, and certainly not in South Africa as a whole. I do not rely on these data inductively to generalize the theoretical claims I make. My claim is the more modest one that my empirical observations in the Vaal River region are consistent with a condition of normative incongruence, and that normative incongruence and the circumstances that produce it amount to a plausible alternative to the inconsistency thesis as an explanation for the limited impact of judicial interventions in the region.

Water Wars on Moqhaka's Streets

The Water Services Act provides that municipalities “responsible for ensuring access to water services” are designated as “water services authorities” (§ 1). The Moqhaka Local Municipality bears an additional operational burden as a water services provider, itself responsible for treating wastewater before it is discharged into rivers and supplying clean water to the residents of the towns it services (§ 20).

Every water services authority must ensure the “removal, disposal and purification of human excreta, domestic waste-water, sewage and effluent” (Water Services Act 1997, §§ 1(ii) and (xix) read with § 11(1)). Quality standards for drinking water and for water discharged into water resources are prescribed in the Regulations Relating to Compulsory National Standards and Measures to Conserve Water (2001) promulgated under the authority of Section 9 of the Water Services Act. These regulations work together with the General Authorisations in Terms of Section 39 of the National Water Act (1999), prescribing limits for fecal coliforms, ammonia, arsenic, cadmium, cyanide, chlorine, suspended solids, chemical oxygen demand, and electrical conductivity in wastewater.

Municipalities that act as water service authorities play a primary role in the fulfillment of the right of access to sufficient water (Feris Reference Feris and Plessis2015). Since Moqhaka is legally obliged to provide drinking water to the 250,000 people who live in its service area, it is of some concern that all of the rivers from which it draws water are threatened by pollution and inadequate sewage treatment. Treated wastewater from the towns of Kroonstad, Viljoenskroon, and Steynsrus, all within Moqhaka municipality, is discharged into the Vaal River system. During research inspections in October 2011, however, not one of the wastewater treatment plants in these towns was operating properly (CuDyWat 2011, 40–43). In Kroonstad, wastewater pump stations throughout the town were broken, delivering only about 20 percent of the town's wastewater to the treatment plant. At the Steynsrus treatment plant, machinery and treatment facilities were so decrepit, and the system so backed up with untreated sewage, that an ad hoc outlet had been opened to allow raw sewage to drain into a wetland adjacent to a Vaal River tributary. The Viljoenskroon facility appeared to be capable of treating wastewater satisfactorily, although much of the equipment was operating in a makeshift manner.

In an attempt to increase compliance with water law standards, the national Department of Water introduced the Green Drop and Blue Drop assessment program in 2009, as part of a scheme of incentive-based regulation. The Green Drop Report assesses the performance of wastewater treatment in each of the country's municipalities, while the Blue Drop Report assesses the quality of municipal drinking water supplies. The performance of each municipality is scored out of 100 across a range of criteria. The City of Johannesburg Metropolitan Municipality is a useful standard for comparison. It consistently ranks as one of the best performing municipalities in the country, an important fact given the size of its population. It scored 98.9 on the 2012 Blue Drop Report and 96.0 on the 2014 assessment, while the provincial average for Gauteng, the province in which Johannesburg is located, was 98.1 in 2012 and 92.0 in 2014 (Department of Water Affairs 2014). On the Green Drop assessment, Johannesburg scored 90.5 in 2011 with a provincial average of 78.8 (Department of Water Affairs 2011), and 85.9 in 2013 with a provincial average of 82.7 (Department of Water Affairs 2013).Footnote ¹

In 2011, Moqhaka earned an overall Green Drop score of 41.9. The wastewater treatment plants in Steynsrus, Kroonstad, and Viljoenskroon earned unsurprisingly low site scores of 25, 41, and 43, respectively. The Green Drop Report also assigns a cumulative risk rating to each wastewater treatment plant, indicating how near to its maximum design specifications a plant is operating. Although only the Kroonstad wastewater treatment plant fell into the critical bracket, with a risk rating at 91.3 percent of its specification, the other two plants were hovering near critical at 83.3 and 88.9 percent (Department of Water Affairs 2011, 101–02). In the 2013 Green Drop Report, Moqhaka's overall Green Drop score had dropped to 25.9.

The municipality has performed slightly better in drinking water quality. While the average Blue Drop score for the Free State Province in 2011 was 64.1 and the national average 72.9, Moqhaka municipality's overall Blue Drop score in 2011 was just 22. This improved steadily through 2012 (55) and 2014 (60), a trend that is reflected in the improvement of the rating of the three drinking water treatments plants in Kroonstad, Viljoenskroon, and Steynsrus from 20.9, 31.5, and 16.4 in 2011 (Department of Water Affairs 2011, 24), to 59.8, 65.0 and 49.2 in 2014 (Department of Water Affairs 2014, 203).

Before this improvement, however, the impact of substandard water treatment was significant. Beginning in 2005, residents complained that the poorer areas were being ignored (Everton Reference Everton2005), that sewers were blocked, that water was being wasted through burst pipes, forcing people to collect water in buckets for washing and for flushing toilets, and that municipal officials appeared to be doing nothing about the problems (Geldenhuys Reference Geldenhuys2005). Water had to be brought into Kroonstad by rail from neighboring towns (de Wet Reference de Wet2005). Complaints continued through 2007, even after a new municipal manager was appointed promising to focus on water quality concerns (Geldenhuys Reference Geldenhuys2007). Sewage spills into the Vals River were so severe that a spate of cattle deaths was attributed to the contaminated river water (Geldenhuys Reference Geldenhuys2007). Domestic and agricultural water-use restrictions in place between 2005 and 2008 were designed to ease the pressure on both water purification plants and wastewater treatment plants. In October 2010, an inability to deliver sufficiently clean water to Kroonstad residents led to gastrointestinal illnesses and hospitalizations (Brits Reference Brits2010; Evans Reference Evans2010).

In South African communities where basic services are inadequate, residents often engage in service delivery protests, taking to the streets to vent their anger with government, sometimes violently. The lack of access to water services and sanitation is a particular catalyst for these protests (Johnston and Bernstein Reference Johnston and Bernstein2007; Hough Reference Hough2008; Turton Reference Turton2009; Karamoko Reference Karamoko2011; Nleya Reference Nleya2011; Nleya et al. Reference Nleya, Thompson, Tapscott, Piper and Esau2011; Tapela Reference Tapela2012). Moqhaka, too, has seen its share of service delivery protests, some characterized by civil disobedience and damage to government buildings and property (Brits Reference Brits2011; CuDyWat 2011, 10; Mashaba Reference Mashaba2011). This unlawful behavior during service delivery protests is sometimes explained as a reaction to the government's own unlawful failure to meet statutorily imposed service delivery and water resource management obligations. On a visit to the Moqhaka Local Municipality during service delivery protests in February 2005, national Minister of Communications Ivy Matsepe-Casaburri admitted that “people are sometimes ungovernable because we made them ungovernable” (Phillips Reference Phillips2005, 2).

A Toxic River Runs Through Ngwathe

The riverside town of Parys has long relied on the Vaal River, both for domestic and agricultural water supplies and for the tourism and leisure revenue it attracts (van Riet and Tempelhoff Reference van Riet and Tempelhoff2009, 39–41). As the environmental health of the Vaal has declined, however, job losses and declining productivity have plagued the tourism and farming industries and residents have suffered a deterioration in water quality and interruptions in supply (CuDyWat 2008, 21–22; van Riet and Tempelhoff Reference van Riet and Tempelhoff2009).

The Ngwathe Local Municipality is responsible for drinking water supplies and wastewater treatment in Parys and four other towns. Like Moqhaka Local Municipality, it deals with both sewage and wastewater disposal and the abstraction and treatment of drinking water supplies. Ngwathe's drinking water quality as measured by the Blue Drop Reports has fluctuated between 45.4 in 2011, 20.6 in 2012, and 55.4 in 2014 (Department of Water Affairs 2014, 213).

The Parys wastewater treatment plant earned a score of 42.1 on the 2011 Green Drop Report, although its score in the category of wastewater quality compliance was only 28 (Department of Water Affairs 2011, 109). The fact that the facility scored well in categories like process control, maintenance and management (60), monitoring (60), reporting (75), and asset management (63) makes it even more difficult to understand how in the category of wastewater quality—the category toward which performance in all the other categories is directed—it continues to perform so poorly. Ngwathe municipality's overall score for 2011 was 44.9, comparable to Moqhaka's score. But, as in Moqhaka, Ngwathe's Green Drop score plummeted in 2013, to 15.9 (Department of Water Affairs 2013, 129).

The pollution of the river and the decline of river water quality have placed Parys in the path of a “slow-onset environmental disaster” (van Riet and Tempelhoff Reference van Riet and Tempelhoff2009, 48). During September 2010, it became apparent to members of the NGO Save the Vaal Environment (SAVE) that the Parys wastewater treatment plant was pumping raw sewage directly into the Vaal River under cover of darkness (SAVE v. Ngwathe Local Municipality 2010a). SAVE approached the high court in Bloemfontein, which subsequently ordered the Ngwathe Municipality to end the discharge of raw sewage within one week and issued a mandamus compelling the municipality to “properly maintain its sewage works and to ensure that there is no overflow or spillage from the sewage works into the Vaal River” (SAVE v. Ngwathe Local Municipality 2010b, para. 3).

In October 2010, the national Department of Water Affairs became involved, directing the municipality to contain any sewage that poses a risk to the Vaal and to formulate a remediation plan to improve discharge quality and general operations at the Parys treatment works (Sonjica Reference Sonjica2010). But in April 2012, the official responsible for Ngwathe Municipality's wastewater treatment in Parys admitted openly, if contritely, that the municipality remained noncompliant with statutory and regulatory standards for wastewater discharge (“Edward,” personal interview, April 5, 2012).

Despite a wastewater treatment facility that has recently been upgraded and has reasonably well-functioning management, monitoring, and reporting systems, pollution of the Vaal River at Parys was more or less constant between 2008 and 2013. Even the direct application of the law in the form of a court interdict has been ineffective in bringing an end to the Vaal's pollution at Parys. Against the background of this pollution crisis, drinking water quality in the area has been highly variable.

Court Battles in Emfuleni

Like Ngwathe, the Emfuleni Local Municipality has been guilty of allowing raw, untreated, and improperly treated sewage to flow into the Vaal River at the town of Vanderbijlpark (Eliseev Reference Eliseev2006; Marrian Reference Marrian2007; Momberg Reference Momberg2008; Skade and Flanagan Reference Skade and Louise2008). By late 2008, after repeated sewage spills and following a fresh round of fecal contamination, SAVE resorted to court action.

The first court victory came in November 2008 in the form of an interdict from the Johannesburg High Court, ordering the Emfuleni Municipality to take the necessary measures to prevent the flow of raw sewage into the river from its treatment works (SAVE v. Emfuleni Local Municipality (No. 1) 2008). It then emerged that the municipality had sought to comply formally with this order, which had specified to which treatment plants the interdict applied, by diverting all sewage to different treatment plants. When sewage spills resulted from these other plants, the Johannesburg High Court issued a fresh interdict in December 2008 prohibiting the municipality from allowing sewage to spill from these plants, and calling on the municipality to show cause why the court should not issue a mandamus ordering it to overhaul its treatment works (SAVE v. Emfuleni Local Municipality (No. 2) 2008). A few months later, in April 2009, the court again ordered Emfuleni to comply with wastewater discharge standards set in the National Water Act (SAVE v. Emfuleni Local Municipality (No. 3) 2009).

In May 2009, however, on four documented occasions, the water discharged directly into the river by the municipality exceeded limits for fecal coliforms and other pollutants. The municipality had made these discharges at night, apparently in order to minimize the likelihood of its noncompliance being discovered (SAVE v. Emfuleni Local Municipality (No. 4) 2009a, paras. 20–27; SAVE v. Emfuleni Local Municipality (No. 4) 2009b, 1–2). In early June, the court again interdicted the municipality from allowing effluent in excess of prescribed limits to flow into the river, and ordered the municipality to provide daily water quality analyses from all of its sewage treatment plants (SAVE v. Emfuleni Local Municipality (No. 5) 2009). In justifying this supervisory order, the court pointed out that despite the municipality's claims to have taken steps to prevent the pollution, the persistent spillages were proof that the municipality had not done so.

Emfuleni's performance eventually improved, at least for a time. The municipality earned a Green Drop score of 66.9 in 2011 and 81.1 in 2013 (Department of Water Affairs 2013, 162), far above those of either Moqhaka or Ngwathe. But in December 2013, SAVE discovered a skelmpyp, the literal translation of which might be “crook pipe” or “cheat pipe,” connecting the municipality's sewerage system to the storm water system draining into a tributary of the Vaal. This allowed excess sewage to flow directly into the river, bypassing the wastewater treatment works, without compromising the quality of the monitored wastewater discharges (SAVE v. Emfuleni Local Municipality (No. 6) 2013a). The municipality was handed another court order interdicting it from pumping untreated sewage into the Vaal (SAVE v. Emfuleni Local Municipality (No. 6) 2013b).

In both Emfuleni and Ngwathe, there has been rigorous enforcement of the legislation with little lasting effect. Unfortunately, the pattern exists on a broader level. The national Department of Water Affairs operates a Compliance, Monitoring and Enforcement Directorate, mandated as its name suggests to monitor and enforce compliance with water legislation. The directorate uses four legal instruments against offenders, starting with notices known as predirectives and injunctions in the form of directives (one of which was issued against Ngwathe in October 2010), and ending with hearings in the water tribunal or prosecutions in the ordinary courts. In its August 2010 report to parliament, the directorate broke down offenders into the categories of mines, agriculture, industry, water services authorities, and others. In the year to June 2010, water services authorities like the three investigated here had been issued with eighty-six out of 264 predirectives and twenty-three out of ninety-seven directives, had appeared in one out of six cases before the water tribunal, and had faced six out of twenty-three criminal prosecutions (Department of Water Affairs 2010).Footnote ²

While the frequency with which municipalities appear as offenders in these enforcement actions is concerning, the enforcement mechanism forms part of a broader regulatory system that is explicitly designed to advance the constitutional commitment to clean and sufficient water. With this regulatory machinery in place, municipalities' persistent noncompliance with the law despite repeated regulatory and judicial interventions cries out for explanation.

Social Justice Through Law: The Idea of Normative Congruence

We value the rule of law because it protects ordinary citizens from the whims of those in power by keeping official conduct within predetermined limits. A government bounded by previously declared rules (Harlow Reference Harlow2006) allows people to foresee with reasonable certainty how government will use its power, and allows them to plan their own lives accordingly (Hayek Reference Hayek1944, 80; Raz Reference Raz1979, 220). A stable legal system in which official conduct is predictable in light of the laws that bind the government ensures maximum room for people to act, in Kantian fashion, as morally autonomous agents rationally deciding for themselves how to live their lives within the law.

For classical liberals, it is an “inalienable right of the individual” (Hayek Reference Hayek1944, 93) to make and pursue his or her own life plans. Protecting and fulfilling this right requires rules and order that “enhance for all the prospects of achieving their respective purposes” (Hayek Reference Hayek1973, 110). Hayek (Reference Hayek1973, 132, 141–43) complains that results-oriented “social legislation,” which encodes a commitment to social justice and empowers the administrative state to pursue it, compromises the commitment to rules and order by exempting government agencies from the “general rules of just conduct” and exposing individuals to “special purpose-directed rules” issued by those agencies. Epstein (Reference Epstein2008, 514–15) argues that the deference accorded to administrative agencies in pursuing broad conceptions of justice is “utterly inconsistent with the rule of law, if by that we mean, most modestly, that administrative agencies should be constrained by the statutory grant that gives them their power” (see also Epstein Reference Epstein2011, 95–96). Social legislation that empowers officials to act dynamically and creatively in pursuit of the mirage of social justice upsets the predictability and stability that meaningful enjoyment of our capacity for moral autonomy presupposes (Hayek Reference Hayek1976).

The inconsistency thesis leads others to caution against “too much” rule of law or “excessive” legalism because it conflicts with and limits “considerations of individual justice or human compassion” (Marmor Reference Marmor2004, 2, 19). “We should never forget,” Morton Horwitz (Reference Horwitz1976−1977, 566) argues in criticizing E. P. Thompson's (Reference Thompson1975) praise for the rule of law, “that a ‘legalist’ consciousness that excludes ‘result-oriented’ jurisprudence as contrary to the rule of law also inevitably discourages the pursuit of substantive justice.” To do justice in particular cases and achieve the ideal of equity, decision makers must sometimes depart from the rules (Davis Reference Davis1976, 38–39; Solum Reference Solum and Shapiro1994, 120). Fuller himself admits (1969, 173, 177) that adherence to the principles of the rule of law might not represent the best route to achieving a more just society. If not inconsistent with them, others argue that the rule of law is at best indifferent to human rights, since the law need make no commitment to human rights or to a conception of justice in order to constrain official conduct (Murphy Reference Murphy2005; Fox-Decent Reference Fox-Decent2008).

For those on both sides of the inconsistency thesis, the rule of law has no inherent value. Classical liberals see it as only instrumentally valuable to moral autonomy, while social justice advocates are wary of the obstacle it poses to the pursuit of social justice. Further, a legal system that adheres to the rule of law is not for that reason alone a morally good one, and is in fact compatible with great iniquity (Hart Reference Hart1961, 202; Thompson Reference Thompson1975; Raz Reference Raz1979). But even accepting this purely formal and value-neutral characteristic of the rule of law, there are few rule-of-law systems that do not commit, separately, to substantive goals or to a substantive conception of justice. South Africa's transformative constitutional order (Klare Reference Klare1998), for example, relies on law as an important tool of social transformation (Liebenberg Reference Liebenberg2010).

In the face of South Africa's dual constitutional commitment to social justice and the rule of law, the question that legal theory must confront is how the rule of law can accommodate a commitment to a substantive conception of justice. The South African Constitution does not allow us to accept the possibility of tension or inconsistency between the substantive right to sufficient water, or any other economic and social right, and the principles of the rule of law.

My theoretical response is to investigate under what conditions the demand that officials act in congruence with the provisions of social legislation will promote the moral autonomy that classical liberals argue is better protected by maximum predictability, while fostering the social justice that human rights advocates argue is better protected by relaxing the constraints of formal rules. I start by linking legislation and the rule of law more closely. Hart (Reference Hart1961, 66) points out that even an absolute ruler has to legislate in a manner and form that allows his or her subjects to know which utterances carry the force of law and must be obeyed. These manner and form restrictions constitute secondary rules for rule making, or the rules of recognition, which any legislator must adhere to if it is to make valid law (Hart Reference Hart1961, 92–93).

Hart's proto rule of law is reflected in the first seven of Fuller's principles of legality. But while Hart's rule of recognition is a rule for legal validity, Fuller's principles of legality are guidelines for creating social order through law. Hart (Reference Hart1965) famously criticized Fuller's principles of legality as little more than principles of effectiveness in achieving substantive objectives. But Fuller's point is precisely that a legal system will more effectively create order and will better realize substantive goals, whether good or evil, where laws are capable of being understood and obeyed by the people to whom they apply.

The rule of law not only serves the ends of moral autonomy and human agency, by allowing people to make decisions on the basis of clear rules and constrained government conduct: it also depends on people being able to understand the law and adapt their behavior to its prescriptions. Law can guide conduct and create order only if it accepts and affirms this capacity for autonomy and rationality. Fuller (Reference Fuller1969, 162) makes the point unambiguously: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent capable of understanding and following rules.”

More than this, the opportunity that law provides for people to plan their lives and adapt their behavior to the law is only meaningful where official conduct remains congruent with the law and does not disrupt people's plans in ways the law does not contemplate beforehand. Congruence means on one hand that official conduct must be consistent with previously declared rules, and on the other hand that it must be capable of being shown to be consistent with and allowed by those previously declared rules (Stacey Reference Stacey, Dyzenhaus and Thorburn2016, 170–72). To meet the demands of congruence, official conduct must be justifiable to the rational and autonomous members of society against the rules previously declared by officials in that society (Fuller Reference Fuller1969, 214; Mureinik Reference Mureinik1994; Dyzenhaus Reference Dyzenhaus1998; Allan Reference Allan1999).

Congruence with formal rules may fulfill this Kantian demand for justification where a government makes no normative commitments. But where a government does make normative commitments, which legislation encodes and that purport to inform and guide official conduct, formal congruence will need to be supplemented by congruence with those normative commitments. Our conception of the rule of law must adapt accordingly, becoming increasingly responsive (Nonet and Selznick Reference Nonet and Philip2001) or reflexive (Teubner Reference Teubner1983) to the normative foundations on which the law now rests. In a legal system infused with normative content, the rule of law can produce legitimacy only as long as the legal order “reflexively responds to the need for justification” and is “made pervious to moral argumentation” (Habermas Reference Habermas and McMurrin1988, 243–44).

This is the kernel of the idea of normative congruence. Where official conduct is justifiable against whatever normative commitments a legal system happens to make, the commitment to the view of human beings as rational, morally autonomous agents is upheld. If predictability and stability are valuable only to the extent that they uphold the commitment to autonomy, then there can be no complaint, on the basis of autonomy, against a legal system that justifies official conduct to its subjects against normative principles. Conversely, official conduct that is incongruent with normative commitments cannot be justified to legal subjects, and is as much a threat to the rule-of-law values of autonomy and rationality as any failure to act in congruence with formal rules.

I argue that what explains the rule-of-law failures in the Vaal River region is a condition of normative incongruence. In some ways, normative incongruence is a classic law and society gap between law on the books and law in action (Pound Reference Pound1910; Shapiro Reference Shapiro1968; Melnick Reference Melnick, Miller and Barnes2004; Seron and Silbey Reference Seron, Silbey and Sarat2004). I adapt this idea here to use the rule-of-law language I have so far been using. For Hart (Reference Hart1961, 111, 114), the gap between law and action emerges from the lack of “unified or shared acceptance” of the rule of recognition by which the validity of law can be determined. In the Vaal River region, the gap between law and action is not the result of a lack of shared acceptance of a Hartian rule of recognition, but of municipal officials' chronic failure to uphold the normative commitments of the law even as courts compel their compliance with formal rules designed to achieve those commitments.

The Skelmpyp Phenomenon

I learned the term skelmpyp during my investigation of pollution in the Vaal River area. A skelmpyp furtively and illegally discharges pollutants into a watercourse in a way that escapes detection by monitoring authorities. The Emfuleni and Ngwathe municipalities have a history documented in court records of dodging detection for water law violations by using skelmpyps or releasing untreated wastewater at night when monitoring is more difficult. In Kroonstad in the Moqhaka municipality, a skelmpyp in the form of a hidden canal has been constructed to lead raw, untreated sewage away from the treatment plant and into a tributary of the Vaal River (CuDyWat 2011, 66–67). I see the skelmpyp phenomenon as paradigmatic of normative incongruence. Officials responsible for sewage and wastewater treatment have taken active steps, in the construction of skelmpyps and the clandestine discharge of wastewater, to achieve the appearance of compliance with the formal requirements of clean water, all the while dumping raw sewage into rivers out the back door. A skelmpyp is a form of administrative shortcut (Lipsky Reference Lipsky, Hawley and Lipsky1976) to complying with the formal requirements of the law, or at least appearing to do so, while official conduct as a whole is incongruent with the law's more fundamental normative objectives.

In Ngwathe, one municipal official admitted (“Edward,” personal interview, April 5, 2012) that his primary objective is to achieve high Blue Drop and Green Drop scores. Surprisingly, in this light, he did not value very highly the environmental integrity of the water sources from which Ngwathe draws water: I asked him to score various objectives of water management out of ten on a scale of importance, and while he rated “sustainable use of water” at 10, adding that the municipality's supply of water “must be sustainable and must be reliable,” he rated “uses of water that are not harmful to the environment” at 2. The Green Drop scheme does not score municipalities directly on environmental health, perhaps explaining why the official ranked it of low importance. However, delivering sustainable water supplies to the people—which is directly scored in the Blue Drop assessment—is closely linked to the integrity of environmental water resources.

The skelmpyp phenomenon suggests that the broader goals of the water law framework are being scuppered by a narrow-minded focus on the formal requirements of the regulatory scheme. Enforcing regulatory rules against officials who face challenges in meeting those rules may produce outcomes quite antithetical to the rules' normative objectives, and a regulatory and enforcement system that is increasingly specific in the instructions it gives to officials may not necessarily focus official attention on the underlying constitutional values their conduct should aim to promote.

Traces of normative incongruence appear in other ways too. A deputy director in the national Department of Environmental Affairs complains that while municipalities often incorporate the imperatives of national legislation into municipal planning documents, formally committing to sustainable water use and environmental health, for example, the operational or strategic details of these plans, in the Free State province at least, rarely provide for how those imperatives will be followed on the ground (Loate Reference Loate2012). By contrast, municipalities in other provinces have formulated comprehensive water-use and management plans for the water resources on which they rely (Nel, du Plessis, and Retief Reference Nel, du Plessis, Retief and du Plessis2015, 85–86).

Municipalities make a similarly hollow and formalistic commitment to the Batho Pele (people first) principles, set out in a 1997 government white paper entitled “Transforming Public Service Delivery” (Department of Public Service and Administration 1997). One of the eight Batho Pele principles concerns service standards, and provides that citizens must be told what level and quality of services they should expect. Citizens, for their part, should “insist that [government's] promises are kept” (Department of Public Service and Administration 1997). This is, in effect, a statement of the rule-of-law principle of congruence in the context of service delivery. I asked municipal officials about the Batho Pele principles. One confessed that his municipality was “not living those principles” (“Edward,” personal interview, April 5, 2012), while another dismissed them as “just paper” (“Dineo,” personal interview, March 29, 2012). In most cases, the principles are seen as little more than “eloquent words pasted to the office wall” (CuDyWat 2011, 91).

The efficacy of the water law framework relies on the implementation efforts of local government officials who “have the health of the community at heart” (Tempelhoff Reference Tempelhoff2012). It may be that some municipal officials are not committed to the health of the community, and will take drastic steps to appear to be meeting quantifiable standards even while discharging untreated sewage through a skelmpyp. Indeed, one local councilor in the Vaal Region has accused officials of a “total disregard for human values” (van der Westhuizen Reference van der Westhuizen2012), while an official at a municipal water treatment plant in Limpopo province admitted that “[n]obody cares what we release from our works. … We get a paycheque regardless of [water] quality” (Kings Reference Kings2015).

But a lack of concern for human values is by no means a generalizable explanation for the skelmpyp phenomenon or for other symptoms of normative incongruence. There are some officials who are committed to the law's normative goals and act in good faith toward their fulfillment (CuDyWat 2011), but face obstacles that make it difficult for them to achieve them. The outcome either way, however, is official conduct that is incongruent with the law's normative commitments.

The solution to this normative incongruence is not to resign ourselves to the tension between the rule of law and social justice and abandon the commitment to one or the other, but to identify the causes of normative incongruence and to work toward removing them. I make a start in this endeavor by describing three sources of normative incongruence: incapacity and incompetence in the ranks of the municipality, officials' misunderstanding of the law under which they operate, and a breakdown in governmental coordination across the water system.

Capacity and Competence

Poorly maintained and broken equipment in water treatment plants and insufficient supplies of water treatment chemicals plague the water treatment plants in the municipalities I investigate here. This helps explain why water is not properly treated before it is discharged into the Vaal and why it is fed into taps without proper treatment. But how did this state of affairs arise in the first place?

A short and convenient explanation for the region's crumbling water treatment infrastructure is that the municipalities do not have enough money to maintain or upgrade their facilities, but the reality is more complex. In October 2005, Kroonstad was one of 136 local municipalities targeted in the national government's Project Consolidate, an initiative to improve municipal service delivery through additional financial support (Swart and Adams Reference Swart, Adams and du Plessis2015). An amount of 15 million Rand (about $2.5 million at the time) was disbursed to the Moqhaka municipality for the upgrade of sewerage systems and the rehabilitation of water storage dams (Phillips Reference Phillips2005). Moqhaka has also benefited from funds distributed by the national Department of Water Affairs as part of the Accelerated Community Infrastructure Programme (ACIP) (Department of Water Affairs 2011). By 2010, 117 refurbishment projects had been initiated and 46 million Rand ($6.5 million) paid out to municipalities in the Free State province alone (Mabudafhasi Reference Mabudafhasi2011, 55). Similarly, in 2005, the national Minister of Water Affairs singled out Emfuleni for assistance and secured 130 million Rand ($20 million) from the treasury, in addition to ACIP and Project Consolidate funds, to be spent on upgrading Emfuleni's wastewater management facilities and hiring new staff (Tempelhoff Reference Tempelhoff2009, 170). Ngwathe Municipality, for its part, has received funds from the treasury's municipal infrastructure grant for the upgrade of the Parys Water Treatment Works, Phase 1 of which began in 2009 with Phase 2 beginning in mid-2012 (“Edward,” personal interview, April 5, 2012).

This is not to suggest that there are no fiscal challenges facing the water sector in South Africa. The national Department of Water Affairs has stated that it needs 668 billion Rand over the next ten years to finance water infrastructure upgrades nationwide. At present, the Department is able to budget for 38 billion Rand a year, leaving an annual shortfall of 34 billion Rand (Munshi Reference Munshi2012). To add to the challenge in the Vaal River region, smaller, nonmetropolitan municipalities have small revenue bases and must rely heavily on transfers from central government (Nel, du Plessis, and Retief 2015).

More troubling than these budgetary constraints, however, is the waste and misuse of the funds the municipalities do have. I learned from an assistant manager of environmental health services in the Fezile Dabi District Municipality, under the administrative authority of which both Moqhaka and Ngwathe local municipalities fall, that the municipal manager of one of these local municipalities had refused to approve the purchase of chlorine for water treatment purposes, despite numerous requests from the director of technical services, on the grounds that chlorine is very expensive. The assistant manager found it disturbing that the municipal manager “does not even see the importance of the chemical processes” (“Carien,” personal interview, April 5, 2012). She went on to remark that the spending priorities of elected local municipal officeholders are different from the priorities of the Fezile Dabi District Municipality's department of Community, Health and Environmental Services.

A municipality's choice to spend money on housing or roads rather than water and sewerage infrastructure may be within the realm of legitimate political choices that institutions of representative government must make. Even so, the Local Government: Municipal Systems Act (2000) requires municipalities to “give priority to the basic needs of the local community” and ensure that all members of the local community have access to at least the minimum level of basic municipal services (§§ 73(1)(a) and (c)). Preferring houses over water treatment plants in Fezile Dabi does not necessarily indicate that officials have no regard for the constitutional right of access to sufficient water, but it does suggest that officials face numerous competing demands and must allocate limited resources across those demands. Market-centered accounts of corruption (Tilman Reference Tilman1968) hold that where resources are scarce and officials face demands from a variety of sources other than empowering legislation, such as family, community clients, or political patrons, they will have to choose which demands to fulfill (Guzman, Carińo, and Alfiler Reference Guzman, Carińo and Alfiler1975). The empirical evidence in the Vaal River region is consistent with these accounts, suggesting that incongruence between official conduct and the normative principles on which the water laws rest is a result of officials responding to, at least, the demands of short-term electoral politics.

The region also presents symptoms of more insidious “public office-centered” corruption (Werner Reference Werner1983, 147), where officials act primarily to enrich themselves. In Ngwathe municipality, for example, funds earmarked for remedying water treatment problems were simply not spent as required. A 2011 Auditor-General's report into the municipality's finances notes that an amount of 7.5 million Rand set aside for upgrading infrastructural assets could not be located in the municipality's accounts, with no record of it having been spent, while the source of 7.3 million Rand spent on car and other allowances for staff was undocumented in the municipality's account books (Majavu Reference Majavu2011). The South African Constitutional Court (Glenister v. President of the Republic of South Africa and Others 2011, paras. 106–107 and 166) has emphasized that self-serving corruption and the misuse of government funds is incongruent with the constitutional commitment to social justice. Corruption has a deleterious effect on the government's ability to promote and fulfill rights in the Bill of Rights because the available resources within which reasonable steps toward the progressive realization of socioeconomic rights must be taken are significantly reduced when officials spend them on cars instead.

A second reason for the municipalities' inability to implement legislation is the lack of trained and competent technical personnel (van der Waldt Reference van der Waldt and du Plessis2015, 337). Much of the blame for these operational deficits, however, lies with the municipalities' own decisions in the face of advice and direction from the national government. To assist local municipalities in staffing water management facilities, for example, the national Department of Water Affairs prepares an organogram reflecting the ideal staff structure for the various parts of water services authorities. The organogram outlines the numbers of process controllers, technicians, and management personnel that municipalities should employ, depending on the size of the municipality and the water loads it must process, and specifies the qualifications that each of these functionaries must have. In addition, the municipalities have been provided with computer software to assist them in making human resource decisions that track this ideal structure (Water Research Commission 2000).

Officials in both Emfuleni and Ngwathe admitted that their municipal personnel structures depart from the national department's organogram, and that they do not employ sufficient competent technical staff. When I asked the Ngwathe official if he planned to appoint new, competent process controllers to the municipality's water treatment plants, he explained that replacing even an incompetent or improperly qualified worker with a properly qualified worker carries the risk of conflict with labor unions, and is a politically difficult task for a municipal official.

In Moqhaka municipality, the municipal council has for some years appointed more managerial staff than is necessary and left the technical jobs “at the coalface” of water supply management unfilled. The result is a “top-heavy” personnel structure without enough artisans and technicians to maintain equipment (CuDyWat 2011, 64). While the sewage treatment plants are not inundated with any more wastewater than they were designed to handle, their capacity to treat waste or purify water is drastically diminished by the lack of competent personnel or properly maintained equipment (Snyman, van Niekerk, and Rajasakran Reference Snyman, van Niekerk and Rajasakran2006; East Rand Water Care Company 2008). The same problem exists in the national Department of Water Affairs, where the multiplication of directorships has left the department with too many managers and too few technicians (Munshi Reference Munshi2012).

The explanation often given for these hiring practices is the political motivations of high officeholders in the municipalities (“Edward,” personal interview, April 5, 2012; “Carien,” personal interview, April 5, 2012; “Alice,” personal interview, April 5, 2012). The story at the local level is consistent with the practice of “cadre deployment” that characterizes national politics in South Africa (van der Waldt Reference van der Waldt and du Plessis2015, 337–38; Choudhry Reference Choudhry2009). Cadre deployment describes the ruling political party's practice of rewarding loyalty with public office, and manufacturing political accountability to the party rather than to the electorate. The practice of cadre deployment has become so widespread in South Africa that the route to a “glittering and rewarding career in the public services lies through affiliation to the ruling party” (Habib and Schulz-Herzenberg Reference Habib, Collette, Calland and Graham2005, 184; Southall Reference Southall1998).

The officeholders responsible for running water services authorities in Fezile Dabi are “political appointees” of this kind, not elected but appointed by bureaucratic superiors. One result of cadre deployment is that the branches of government responsible for monitoring and overseeing compliance with legislation are less likely to take action against recalcitrant administrators when they are members of the same party (Tempelhoff, Munnik, and Viljoen Reference Tempelhoff, Munnik and Viljoen2007, 130; Tempelhoff Reference Tempelhoff2009, 171), and where that party has a strong tradition of centralized control and internal discipline (Giliomee, Myburgh, and Schlemmer Reference Giliomee, Myburgh, Schlemmer and Southall2001; Lodge Reference Lodge2004; Butler Reference Butler2005).

Further, cadre deployment is used as a tool of discipline to ensure officials toe the party line. The Ngwathe official I spoke to suggested that if an appointed official like him challenged the authority or position of elected officials, he may find himself “redeployed” to a less desirable position or municipality (“Edward,” personal interview, April 5, 2012). He made the revealing remark that the local government's politically driven appointment of improperly qualified people to technical positions—“a taxi-driver who is occupying the position of a technician”—amounts to a contravention of the empowering legislation. “A person who has put that person there,” he concluded, “is now violating the [Water Services] Act.” Levels of corruption, in turn, are generally higher when officials are appointed on political, rather than meritocratic, bases (Rauch and Evans 2000; Dahlström, Lapuente, and Teorell Reference Dahlström, Victor and Jan2012). An investigation by the South African Human Rights Commission into water service delivery on a national scale found that municipalities frequently award contracts for the delivery of water services to “their favourite people,” who are unable to deliver on the contract or who violate the conditions of the contract (2014, 14–5, 56).

The forces that pull officials toward the appointment of family, friends, or loyal party members rather than technically qualified people are, again, not necessarily indicative of disregard for the constitutional commitment to social justice objectives. Officials often find themselves torn between conflicting demands of national interests on one hand, and the norms of kinship and community support on the other (Caiden and Caiden Reference Caiden and Caiden1977). But however greatly or poorly Vaal River officials value the constitutional norm of access to sufficient water, the result on the street is official conduct that is incongruent with that norm. As long as the conduct and activities of corrupt and self-serving government officials frustrate and undermine the effective implementation of social legislation, the incongruence between official conduct and the normative commitments the Constitution makes will continue.

Municipal Misunderstandings of Water Law

In December 2005, the national Department of Water Affairs published “A Drinking Water Quality Framework for South Africa,” a policy report intended to “provide the water sector with the information needed to monitor, manage, communicate and regulate drinking water quality in order to protect public health.” The report's executive summary attributes the “unacceptably high” incidence of poor quality or insufficient drinking water in towns and cities around South Africa to a number of root causes consistent with those I described in the previous section: limited institutional capacity (staff, financial resources, skills and expertise); inadequate maintenance of infrastructure; and a lack of public accountability for poor water service delivery (Department of Water Affairs 2005, 4).

The report goes on to describe a general lack of understanding of the “legislative requirements [and] drinking water quality standards,” “requirements for effective management and monitoring” (11), and “governance requirements, responsibilities and accountabilities” (37) that the law imposes on municipalities. Filling this lack, the report continues, requires leading noncompliant water services authorities to an adequate understanding of “all applicable guiding legislation” (37).

Uncertainty about how to interpret and apply governing legislation was a common theme that emerged from my discussions with environmental health and water management officials. While the legislation and regulations are clear in setting environmental health and water supply standards, officials feel that the rules offer no guidance as to how those standards are to be pursued. One such standard is the requirement that six kiloliters of water be provided free of charge to each household per month (Regulations Relating to Compulsory National Standards 2001). A water services official in Emfuleni complained that the regulations do not guide or direct water services authorities toward meeting this regulatory minimum. How her municipality “gets it right,” she complained, “is our problem” (“Dineo,” personal interview, March 29, 2012). The official commented that this challenge was compounded by the inadequacies in the municipality's bylaws and the incapacity of the municipality's legal department to develop new bylaws.

It is certainly true that the success of the water law system depends in part on the mechanisms for local implementation put in place by municipal bylaws, and the Water Services Act enjoins every water services authority to make bylaws setting out “conditions for the provision of water services” (§ 21). While municipalities are free to draft bylaws that best fit their own circumstances and conditions, the Water Services Act is directive, and precisely so, as to the details these bylaws must contain. Indeed, in offering assistance to municipalities, the national Department of Water Affairs has made available a template of generic bylaws, into which the municipalities have merely to insert data and information reflecting their particular circumstances. A comparison of water services bylaws in Emfuleni (Emfuleni Local Municipality Water and Sanitation Bylaws 2004) and Johannesburg (City of Johannesburg Metropolitan Municipality Water Services By-Laws 2004) reveals that Emfuleni's bylaws are substantively very similar to Johannesburg's on key matters of sanitation, water resource management, and water delivery. There have not been regulatory and water system failures in Johannesburg to the same extent as in Emfuleni, suggesting that any deficiencies in the bylaws are not solely to blame.

The official's concern about the capacity of her legal department is telling, though. Emfuleni's lawyers have no expertise in water management or water regulation, and are all generalist legal practitioners responsible for “everything and anything law-related” in the municipality (“Dineo,” personal interview, March 29, 2012). The official line in Emfuleni is that water management problems will persist unless the bylaws are redrafted. However, even were it the case that bad bylaws are responsible for water service breakdowns, the municipality's lack of specialist water law expertise raises doubts that even the best bylaws will remedy the problems the municipality faces. Ultimately, officials and bureaucrats who run the water management system must fully understand the legal language in which bylaws and governing legislation and regulations are drafted in order to follow the directives and uphold the principles set out in the law. A municipal health services official in Joe Gqabi District Municipality pointed out that he is trained as a water engineer, yet is required to engage with and translate legislation, regulations, and bylaws into practical outcomes with no assistance from legal practitioners or advisors (“Bongani,” personal interview, March 28, 2012).

Part of the problem is a straightforward lack of manpower and technical legal expertise in the municipalities (Nel, du Plessis, and du Plessis 2015, 118–19). These structural constraints affect street-level bureaucrats almost universally (Lipsky Reference Lipsky1980; Handler Reference Handler1986). Legislation imposes abstract and sometimes vague normative demands on municipal officials, who must translate those legal demands into action without training or capacity. Officials are likely to respond by pursuing only those demands they can translate into action and act meaningfully toward, an outcome made even more likely when limited resources force officials to select between competing normative demands.

In South Africa, officials must work out for themselves what the demands for access to sufficient water and sustainable water use actually require them to do (Humby and Grandbois Reference Humby and Grandbois2010; Langford and Stacey Reference Langford, Richard, Woolman and Bishop2011; du Plessis and Nel Reference du Plessis, Nel and du Plessis2015), but subject to quite precise regulatory prescriptions on one hand and the abstract requirement in the Water Services Act that water services must “support life and personal hygiene” on the other hand (Liebenberg Reference Liebenberg2010, 467). When officials come to realize that resource constraints mean they cannot consistently provide clean drinking water or ensure properly treated wastewater, they instead allocate the resources they do have to averting the most immediate crises of water service delivery (CuDyWat 2011, 59–60). With officials in this mode of damage control and crisis aversion, there is no clear conception of the overall normative objectives of the legislation, nor a systematic attempt to pursue it.

Government Noncoordination and Fragmentation

The failure to coordinate action between different government entities presents particular problems for water management because rivers flow across geopolitical boundaries. Protecting the integrity of environmental water resources requires attention to the water of an entire watershed, rather than to the water within a single town or municipality. All the political institutions of water management in a watershed need to coordinate their efforts in order to protect any of the water in the watershed effectively. The Constitution recognizes that government institutions must cooperate with one another by “informing one another of, and consulting one another on, matters of common interest” and “co-ordinating their actions and legislation with one another” (Constitution of the Republic of South Africa 1996, §§ 41(1)(h)(iii)–(iv)). The National Water Act, moreover, contemplates comprehensive water resource management at a water-catchment level and provides for the establishment of water catchment management agencies (§§ 6(1)(c) and (2) and 77–90). So far, there are only two operational catchment management agencies for South Africa's nineteen designated catchment management areas, and neither of them operates in the Vaal catchment area (Swart and Adams Reference Swart, Adams and du Plessis2015).

Without specific structures for intergovernmental cooperation on water management issues in place, the “ever-diminishing lines of communication and integration” between government institutions makes such cooperation difficult (CuDyWat 2011, 45). Part of the problem lies in changes to local government structures effected by the Local Government: Municipal Structures Act (1998) and the Local Government: Municipal Systems Act (2000). Townships were absorbed into newly created local municipalities such as Moqhaka, Ngwathe, and Emfuleni, while local municipalities were themselves absorbed into larger district municipalities like Fezile Dabi. The scheme allocates administrative responsibility for some subject areas to the district level, while other subject areas remain the responsibility of local governments. Water resource management and water services delivery in Kroonstad, Viljoenskroon, Parys, and Steynsrus are the responsibility of the Moqhaka and Ngwathe local municipalities, but the closely related subject area of environmental health must be administered by the Fezile Dabi District Municipality in Sasolburg, over a hundred miles away from these towns.

The fragmentation of administrative responsibility both vertically between different tiers of government and horizontally among local governments has compounded a tendency toward the short-sighted management of water within geopolitical boundaries. The belief that another level of government or a geographically distinct municipality is responsible for problems of water quality has allowed municipalities to shift the responsibility for poor water quality or environmental and ecological damage onto other levels of government or other municipalities (CuDyWat 2011; Mokgatlhe Reference Mokgatlhe2012). To complicate matters, the Constitutional Court (Maccsand v. City of Cape Town 2012, paras. 37, 41–43) has recognized that the Constitution's division of administrative responsibility into “distinctive” national, provincial, and local spheres (§ 40(1)) prohibits government entities from exercising their powers so as to “encroach on the geographical, functional or institutional integrity of government in another sphere” (§ 41(1)(g)). It is unclear how to reconcile this view with the recognition in the National Water Act and other environmental legislation that various objectives of environmental regulation cannot be achieved without cooperation and coordination across levels of government (du Plessis and Nel Reference du Plessis, Nel and du Plessis2015).

While failures to cooperate and to coordinate government functions have reduced municipalities' abilities to comply with water law, the Constitution's requirement that organs of government avoid taking legal action against one another (§ 41(1)(h)(vi)) has discouraged efforts to remedy noncompliance with water law. Local government may in principle face legal proceedings from superior levels of government (Nel, du Plessis, and Retief 2015), but provincial and national governments have been reluctant to institute such action even when municipal conduct amounts to a criminal breach of water law (Kotzé Reference Kotzé and Plessis2015; Nel, du Plessis, and du Plessis 2015; Olivier Reference Olivier and du Plessis2015).