Michelle Toxopeüs writes changing legal framework in hope that it would solve water management problems are misplaced

31 January 2019

Since the advent of democracy, South Africa has set out to reform its water law to align with constitutional values. The newly elected democratic government was tasked with developing a legal framework that governed access to and use of water in an equitable and sustainable manner. In response, the White Paper on a National Water Policy for South Africa was published in 1997 with a set of 28 principles developed to guide the drafting of a new water management framework.

Included was the principle that water is held in public trust by the government. In addition, the principles emphasised the need to ensure equitable access and allocation to water, preferential rights of usage instead of ownership, sustainability and integrated water management. This laid the foundation for South Africa’s current legal framework, which seeks to regulate and integrate water resources on the one hand, and water services on the other.

CONSTITUTION

The Constitution, in its very first section, entrenches South Africa’s founding values of human dignity, the achievement of equality and the advancement of human rights and freedoms.[1] Section 27 guarantees everyone’s right to access sufficient water and places an obligation on the state to take legislative and other measures to achieve the progressive realisation of this right. It also affords the rights to equal benefit of the law – ensuring that there is no unfair discrimination in providing water services – human dignity, and life. Further enshrined are the right to an environment that is not harmful to one’s health or wellbeing and the right to just administrative action in water-related decisions. The Constitution also sets out values and principles by which public administration should be governed.[2]

Finally, it allocates different competencies to local, provincial and national government in the management of water. Central to managing water as a resource, national government has legislative and executive authority over fresh water resources,[3] while municipalities must administer water and sanitation services limited to potable water supply, domestic waste water and sewage disposal systems.[4] Local government must structure and manage its administration, budgeting and planning processes in a manner that gives priority to the basic needs of the community, including water services, and promotes the social and economic development of that community.[5] Therefore, national government has authority over water resources while municipalities, as the governance sphere closest to communities, are placed in charge of delivering water services. National government’s regulatory role in water services is constrained by the constitutional mandate given to local government, and several challenges exist in intervening in support of the right to water in this sense.

NATIONAL WATER ACT

Last year marked two decades since the National Water Act 36 of 1998 (NWA) was promulgated. The Act, which provides the legislative framework for South Africa’s water resource management, places sustainability and equity as the central guiding principles in dealing with the country’s water resources. It flows from these principles that national government, as the public trustee of South Africa’s water resources, acting through the Minister of Water and Sanitation, must ensure that water is managed for the benefit of all. This includes ensuring the protection, use, development, conservation, management and control of water resources in a manner that takes into account need, equity, redress, efficiency, safety and growth, amongst others.[6]

Pursuant to this, the Minister must progressively develop a National Water Resource Strategy (NWRS). The NWRS serves as a binding framework for strategically managing water resources on a national scale and must be reviewed every five years. The strategy is intended to provide a framework that sets out the vision and strategic action for how water resources will be effectively managed at national and regional levels. It does not constitute legislation but all authorities and institutions that exercise powers in terms of the NWA must give effect to it.[7] The first NWRS was published in 2004 and updated in 2013. NWRS II responds to the National Development Plan and is framed to achieve three core objectives: water that supports development and the elimination of poverty; contributes to the economy and job creation; and is protected, used, developed, conserved, managed and controlled sustainably and equitably. The objectives are supported by key themes including water resources planning, development and infrastructure management, resource protection, water conservation and demand management, climate change, regulation and international water resource management.

The Act recognises that protecting water resources is essential to effective water management. It puts measures in place for establishing a water resource classification system, resource quality objectives and what is known as the Reserve to ensure they are comprehensively protected. The water resource classification system places each significant water resource in one of three defined classes, using a seven step procedure prescribed by regulation, which determines the level of protection required for a water resource and the extent to which water from that resource is used.[8] 

A class I water resource is minimally used, class II is moderately used and class III is heavily used. Once a water resource is classified, the Minister must determine the resource quality objectives which set out clear goals relating to the quality of each resource and the level of protection required to maintain the necessary quantity and quality for the prescribed use of the resource. The NWA also provides for determining the Reserve for every water resource. The Reserve is the quantity and quality of water required to be set aside, or reserved, to satisfy basic human need and protect aquatic ecosystems. These systems are envisioned to work together to ensure resource protection.

A core feature of the Act is regulating permissible water use by setting regulatory perimeters for licensed and unlicensed entitlements to use water. “Water use” is defined broadly to include taking water from a water resource, storing water, impeding or diverting the flow of water in a watercourse, reducing stream flow through certain activities, discharging water, altering characteristics of watercourses, removing or discharging water found underground, and using water for recreational purposes. Generally, water use must be licensed unless included in Schedule 1 of the NWA, which provides for reasonable water use for domestic purposes, small gardening, animal grazing, and emergency situations, amongst other things. The Act also provides for financial measures to support water resource management services and the implementation of strategies aimed at effectively managing water resources.

Finally, to achieve the Act’s purpose, the NWA establishes institutions like catchment management agencies, water user associations, advisory committees, bodies established to implement international agreements relating to water and the Water Tribunal. By providing for these institutions, the NWA envisages a decentralised institutional structure where local and regional communities are intricately involved in managing water resources in their area.

WATER SERVICES ACT

While the NWA deals with water as a resource, the Water Services Act 108 of 1997 (WSA) regulates access and delivery of water as a service. At its core, the WSA aims to provide for the right of access to basic water supply and sanitation necessary to secure constitutionally entrenched rights to sufficient water and to an environment that is not harmful to human health and wellbeing. The Act defines basic water services as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and hygiene”.[9]

In line with the constitutional imperative, the WSA acknowledges the authority of local government to deliver water and sanitation services and the respective role of national government to support and strengthen municipalities in this mandate. To this end, a duty is placed on municipalities, as water services authorities as defined by the Act, to ensure over time efficient, affordable, economical and sustainable access to water services.

To effectively manage access and delivery of water services, the WSA sets out the regulatory framework for establishing water services institutions like water services providers, intermediaries, committees and water boards. The Act also compliments the NWA by promoting effective water resource management and conservation.

LOCAL GOVERNMENT ACTS

The Local Government: Municipal Structures Act 117 of 1998 (Structures Act) provides the basis for establishing municipalities into the three categories defined by the Constitution – metropolitan, local and district municipalities. It defines the functions and operational requirements for municipal councils and sets out the internal structures and functionaries within municipalities. The Local Government: Municipal Systems Act 32 of 2000 (Systems Act) provides the fundamental principles, mechanisms and processes necessary for municipalities to ensure access to basic services, like water and sanitation services. Section 78 of the Systems Act has a particular impact on the provision of water services as it requires municipalities to perform a rigorous process when determining whether to allow an institution to provide municipal services like water.

As local governments are constitutionally obliged to provide access to water services, these two Acts are integral to water management in South Africa.

NATIONAL ENVIRONMENTAL MANAGEMENT ACT

The National Environmental Management Act 107 of 1998 (NEMA) is South Africa’s framework environmental legislation which gives effect to the environmental right enshrined in the Constitution and governs cooperative environmental governance. It provides for principles intended to inform environmental management including principles of sustainable development, environmental justice, equitable access, effective public participation, public trust, transparency, accountability and access to information, amongst others. Importantly, NEMA also sets out procedures for cooperative governance and integrated environmental management. In the case of water, for example, NEMA allows for the relevant authorities to issue an integrated environmental licence which aligns any environmental licensing rights and obligations with those under a water use authorisation issued under the NWA.[10]

PROPOSED LEGISLATIVE REFORM

The Department has announced its intention to introduce a Water and Sanitation Bill which will merge the National Water Act and the Water Services Act into one piece of legislation. It claims that having a single Act will enable stakeholders within the water sector to better understand the legislative framework relating to water management across the water value chain.[11] The Bill has not yet been introduced for comment, but the state law advisor, in the preliminary stages of developing the Bill, has already raised issues regarding the constitutionality of the Bill.[12]

ARE THE LAWS EFFECTIVELY IMPLEMENTED?

Calls to change the legal framework in the hope that it would solve the problems facing water management are misplaced. While the current framework is not perfect, it is not the problem. It clearly defines the functions of all stakeholders involved to effectively manage water resources and services respectively. As is often the case, it is in implementing the legislation effectively that challenges arise. It is often a complicated process and requires an integrated awareness of various factors that influence implementation and decision making. For example, when allocating a water use licence in terms of the NWA, an intricate knowledge is required of the water class, environmental variables, water quality, water availability, requirements to sustain the Reserve, existing water usage and the population dynamics of the area surrounding the water resource. Erratic weather and climate change are also factors that always need to be taken into account.

Implementation requires government to have sufficient financial resources. But the Department is experiencing severe financial constraints as a result of mismanagement[13] and municipalities are struggling to pay their debts.[14] Despite its progressive water law framework, South Africa can only manage water resources and services to the extent that it has the capacity necessary to do so. As it stands, government is simply not in the financial position to fulfil its constitutional functions effectively.

This brief forms part of a research project into water in South Africa, financed by the Friedrich Naumann Foundation

By Michelle Toxopeüs, Legal Researcher, HSF, 31 January 2019

[1] Section 1(a) of the Constitution.

[2] Section 195 of the Constitution.

[3] Fresh water resource management is not listed in Schedule 4 or 5 of the Constitution dealing with functional areas of concurrent national and provincial legislative competence and functional areas of exclusive provincial legislative competence respectively. Therefore, it falls within the residual competence of national government.

[4] Section 156 read with Schedule 4, Part B of the Constitution.

[5] Section 153(a) of the Constitution.

[6] Section 2 of the NWA.

[7] Section 7 of the NWA.

[8] GG No 33541 of GN R810 of 17 September 2010 accessed at https://www.gov.za/sites/default/files/33541_810.pdf.

[9] Section 1 of the WSA.

[10] Section 24L of NEMA.

[11] Parliamentary committee meeting of 10 May 2017 accessed at https://pmg.org.za/committee-meeting/24330/.

[12] Parliamentary committee meeting of 8 November 2017 accessed at https://pmg.org.za/committee-meeting/25442/.

[13] See a briefing by National Treasury and the Auditor General to the Parliamentary Committee for Water and Sanitation in May 2018, accessed at https://pmg.org.za/committee-meeting/26328/?via=cte-menu.

[14] See a report by Stats SA in 2016, accessed at http://www.statssa.gov.za/?p=10152.