COMMENT

The institutional structure of water resource management

Michelle Toxopeüs says while the DWS has overall responsibility it is failing to fulfill its obligations under Act

The institutional structure of water resource management

5 February 2019

The National Water Act 36 of 1998 (NWA) initiated a large-scale reform of South Africa’s institutional water structure to align with constitutional values. It introduced a legislative shift away from the centralised governance framework established by the Water Act of 1956 by directing the establishment of water institutions aimed at decentralising water resource governance. These institutions, when properly constituted and fully functional, would promote the sustainable use of water for the benefit of all users – the ultimate aim of water resource management[1] – and encourage community participation.

The NWA defines a water management institution as:

1. a catchment management agency (CMA);

2. a water user association (WUA);

3. a body responsible for international water management; or

4. any person who fulfils the functions of a water management institution in terms of the NWA.

The NWA also established a Water Tribunal to hear appeals against certain decisions related to water resources. These water management institutions, together with the Department of Water and Sanitation, promote the integrated management of water resources in South Africa.

DEPARTMENT OF WATER AND SANITATION

The Department, acting through the Minister of Water and Sanitation, is the custodian of water in South Africa. It is ultimately responsible for ensuring that water as a resource from rivers, lakes and dams is allocated equitably and used beneficially in the public interest, while promoting environmental values.[2] Therefore, the Department must develop water sector regulatory and policy frameworks and ensure that water resources are protected, used, developed, conserved, managed and controlled effectively. In doing so, the Minister is responsible for developing the National Water Resources Strategy (NWRS) and national monitoring and information systems as well as setting national norms, standards and pricing targets.

The NWA makes provision for the recovery of costs for services rendered by the Department to water users. To manage the recovery, the Water Trading Entity was created within the Department.[3] It consists of two components – water resource management and infrastructure management. The water resource management component deals with water quality, conservation and allocating water through CMAs while the infrastructure management component is responsible for the operation, maintenance and development of infrastructure. Financial mismanagement within the Water Trading Entity led to National Treasury closing the Entity’s account in 2017 because its overdraft was too high.[4] While the overdraft has been reduced in line with Treasury’s expectations and the account reopened, financial challenges persist.

Developing and managing national water resource infrastructure also forms part of the Department’s functions. There have been proposals to transfer these functions to a separate national water resource infrastructure agency. A Bill to this effect was introduced to Parliament in 2008 but little progress was made.[5] Although it was included in the National Development Plan, implementing the proposals has fallen flat. If the Agency’s governance structures are sound, it remains an important possible reform to ensure water resource infrastructure is effectively managed.

The Department must also ensure that water resources are properly protected. Unless this is done effectively, there will be little purpose in regulating their use, development, conservation, management or control. The Minister must therefore (i) develop a water resource classification system; (ii) develop resource quality objectives; and (iii) determine the Reserve for all water resources. In determining the Reserve for each water resource, the Minister must take into account the quantity and quality of water required (i) for basic needs and water supply and (ii) to protect aquatic ecosystems. The Department must also ensure that water is used beneficially in the public interest. Central to this is the obligation to manage and oversee water use allocations.

Pursuant to the overarching goal of decentralising water resource management, the Minister may progressively establish CMAs and WUAs. These institutions form the primary means of ensuring that local communities actively participate in water resource management. It must ensure that CMAs comply with national policy and the NWRS. Where no functional CMA exists in a water management area, the Minister must fulfil the functions of a CMA in that area.

The Minister is also entitled to expropriate property for purposes contemplated in the NWA if it is a public purpose or in the public interest.[6]

CATCHMENT MANAGEMENT AGENCIES

CMAs are established to ensure that water resources are managed effectively at regional or catchment level where local community involvement is most effective.[7] It is here where local communities are envisaged to actively participate in the decision-making processes and encouraged to promote equitable access to water, ensuring that usage meets basic human needs and facilitates social and economic growth in the area.

The Minister, through the NWRS, must establish defined water management areas across the country within which CMAs will operate. The NWA envisages that each water management area will have a CMA. Currently, South Africa has nine water management areas (which are not aligned with provincial boundaries),[8] but only two fully operational CMAs have been established since the enactment of the NWA twenty years ago.[9] While other CMAs have been established, they are not yet functional. In 2017, the Department called for comment on a proposal to establish a single CMA to manage water resources in all nine water management areas. The new Minister has subsequently reviewed the decision and tasked the Department with working towards establishing the remaining seven CMAs.[10]

Once a CMA is established and becomes operational it obtains general powers inherent to its establishment like entering into contracts and borrowing money, for example. In order to manage regional water resources effectively, its initial functions include advising interested persons on handling water resources in the area, promoting community participation in water resource management and coordinating activities between water users and water management institutions within its designated area.[11] A CMA must develop a catchment management strategy for its area which it must implement in line with the NWRS. In addition to this, the Minister may delegate or assign a range of further powers and duties to CMAs.[12]

WATER USER ASSOCIATIONS

WUAs are water management institutions established by the Minister that operate at a local level.[13] While they are defined as water management institutions, their primary role is not water management.[14] Instead, WUAs provide the institutional structure necessary for individual water users to cooperate and pool their resources – allowing them to carry out water-related activities more effectively. The functions of a WUA depend largely on its constitution drafted in terms of the NWA.

Another means of creating WUAs is through irrigation boards. Historically, irrigation boards were established to fund poor white farmers. Under the NWA, irrigation boards are to be transformed into WUAs and made available to previously disadvantaged individuals, particularly farmers. But this process has been slow – in 2017, the Minister reported that the Department had achieved little transformation.[15] In the 20 years since the enactment of the NWA, only 99 irrigation boards have been transformed into WUAs, with 100 boards still waiting to undergo the process. The Department attributes the slow transformation rate to access to land, capacity and skills, and allocation of services.

INTERNATIONAL WATER MANAGEMENT ORGANISATIONS

The NWA gives the Minister the authority to establish bodies, or institutions, for purposes of implementing international agreements that deal with the management and development of shared water resources. Certain bodies that were established before the enactment of the NWA are considered international water management bodies under Chapter 10 of the NWA. These include the Trans-Caledon Tunnel Authority (1986), the Komati Basin Water Authority (1992) and the VioolsdriftNoordoewer Joint Irrigation Authority (1992).[16] These bodies may perform their functions outside of South Africa.[17]

A body established in terms of this Chapter may also perform additional functions like providing water management institutions with management, financial and training services, if the Minister is convinced that these ancillary functions will not interfere with its primary role.[18] Where it performs more than one function, it must manage each of its functions separately. It is also obliged to report to the Minister on the performance of its functions annually.[19]

WATER TRIBUNAL

The Water Tribunal is an independent body established by the NWA to adjudicate appeals against administrative decisions taken by a water management authority or institution, or a CMA. Any decision taken by the Tribunal may be taken on appeal to the High Court. The Tribunal consists of a chairperson, deputy chairperson and additional members with knowledge in law, engineering, water resource management or related fields. Therefore, members adjudicating appeals do not need a legal background. Despite this, members are appointed by the Minister on the recommendation of the Judicial Service Commission – the body constitutionally mandated to appoint judges – and the Water Research Commission. The Tribunal is given administrative support by the Department. The jurisdiction of the Tribunal is limited to those situations stipulated in the NWA.

In 2012, the Tribunal effectively became non-operational. The Department placed the Tribunal’s operations in abeyance pending amendment of the NWA. The Minister refused to appoint a new chairperson and additional members to the Tribunal after the terms of those members who sat on the Tribunal had expired. In its place, the Minister directed any pending appeals before the Tribunal at the time to be subject to a mediation process established in terms of the NWA. Upon reviewing the decision, the High Court held that the Minister’s failure to appoint members of the Tribunal was constitutionally invalid as it infringed on the right to access an impartial tribunal in terms of section 34 of the Constitution.[20] The Court also held that the Minister was not given a discretion, in terms of the NWA, to appoint a chairperson and additional members to the Tribunal. Until the legislation was amended, the Minister was obliged to make the appointments.

CONCLUSION

The Department has the overall responsibility for and authority over national water resources. But it is failing to fulfil most obligations imposed on it by the NWA. The institutions, like CMAs, that are intended to manage resources at a regional level have not yet been set up or are not yet operational. It still needs to transform approximately 100 irrigation boards to WUAs. No further action has been taken to establish a national water resource infrastructure agency despite Cabinet’s approval more than a decade ago. The NWRS, which directs the strategic vision of water management for the country, is not reviewed regularly despite there being an obligation on the Minister to do so every five years. And it has been struggling to overcome its dismal financial position – in the 2017/2018 financial year, the Department had an overdraft of R119 million, and accruals and payables to the value of just over R2 billion.[21]

The NWA recognises the need to delegate management functions to a regional level so that communities can actively participate in managing the water resources in their area. But it is difficult to comprehend how other institutions mandated to manage water resources are able to perform their functions effectively when the Department is unable to fulfil its obligations as the public trustee of water resources. As a national government department, it is accountable to Parliament for the exercise of its powers and functions.[22] While Parliament has scrutinised the conduct of both the Department and the Minister, it has not taken any meaningful action against either.

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, 5 February 2019

[1] Preamble of the NWA.

[2] Section 3(2) of the NWA.

[3] Previously established as a Water and Equipment Trading Account in 1983, the trading account was amended by the Public Finance Management Act, and became the Water Trading Entity in 2006.

[4] See a report back by the Department to the Parliamentary Committee on Water and Sanitation (27 March 2018) accessed at https://pmg.org.za/committee-meeting/26070/.

[5] For a draft of the Bill see https://pmg.org.za/bill/388/.

[6] Section 64 of the NWA.

[7] CMAs are regulated by Chapter 7 of the NWA.

[8] Government Notice No. 40279 in GG 1056 of 16 September 2016.

[9]Breede-Gouritz CMA in parts of the Western Cape and Eastern Cape provinces and Inkomati-Usuthu CMA largely falling within Mpumalanga.

[10] Parliamentary committee meeting of 12 September 2018, accessed at https://pmg.org.za/committee-meeting/27065/.

[11] Section 80 of the NWA.

[12] In terms of section 63(1)(c) of the NWA, the Minister may delegate a power and duty to a water management institution, including a CMA. 

[13] Established and regulated by Chapter 8 of the NWA.

[14] Although the Minister and CMAs may delegate water management functions to WUAs.

[15] See the Report to the Parliamentary Committee for Water and Sanitation accessed at https://pmg.org.za/committee-meeting/24644/.

[16] Section 108 of the NWA.

[17] Section 103(3) of the NWA.

[18] Section 103(2) of the NWA.

[19] Section 106 of the NWA.

[20]Exxaro Coal (Mpumalanga) (Pty) Ltd and Another v Minister of Water Affairs and Another [2012] ZAGPPHC 354 (7 December 2012) at para 21.

[21] See the DWS’s Annual Report 2017/2018 accessed at https://www.gov.za/sites/default/files/Water%20and%20Sanitation%20Annual%20Report.pdf.

[22] Section 92(2) of the Constitution.