Legislation review

Presentation to the Portfolio Committee: Water & Environment

Legislation review

Presentation byMs S Damane Mkosana

Acting Chief Director: Legal Service26 - 27 January 2011

1. National Water Act, 36 of 19982. Water Services Act 108 of 19983. Water Research Act 34 of 19714. Secondary Legislation (Regulations)

2

PRESENTATION OUTLINE

•Background •The Constitution•The need to review•Reasons for the review•Areas of review•Way forward

3

Background

• The National Water Act, 1998 (Act 36 of 1998) (NWA) is the primary legal tool dealing with the protection, conservation, development and management of water resources within South Africa

• The preamble to the NWA holds a human rights approach principle which recognizes that the ultimate aim of the water resource management is to achieve the sustainable use of water for the benefit of all users.

National Water Act (36 of 1998)

4

• The main purpose of the NWA is therefore to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account amongst other factors; meeting the basic human needs of present and future generations, promoting the efficient,

5

National Water Act (36 of 1998) cont…

sustainable and beneficial use of water in the public interest, facilitating social and economic development, providing for growing demand on water use, protecting aquatic and associated ecosystems and their biological diversity, reducing and preventing pollution and degradation of water resources, meeting international obligations, promoting dam safety and managing floods and drought.

6

National Water Act (36 of 1998) cont…

Water Services Act

• The Department enacted the Water Services

Act (108 of 1998) in 1997. It was a forerunner in thought in particular with regard to the following:It distinguished a service authority from a service

provider; andIt reconstituted the role of water boards.

7

Water Services Act (108 of 1997)

• The Water Services Act was the first piece of “new order” legislation which contemplated service providers and gave foundation to the Constitutional perspective that local government is responsible for ensuring service provision, but need not necessarily be the service provider.

8

Water Services Act (108 of 1997) cont…

• The Water Research Act was promulgated in 1971 and amended in 1996.

• During 2006 the Water Research Council Board of Directors requested a task team be established to investigate the need to review the Water Research Act. The task team concluded that there was only the need for minor amendments to this Act in terms of modernizing the language used, administrative issues, governance and alignment with specifically the Public Finance Management Act.

9

Water Research Act (34 of 1971)

• The Constitution of the Republic of South Africa, 1996 (“the Constitution”) laid out specific fundamental rights in terms of access to water in the Bill of Rights.

• Section 27 of the Constitution sets out the mandate of the Department of Water Affairs.

• The NWA was thus drafted as a legislative measure to give effect to section 27 of the Constitution in respect to the right to have access to water.

10

The Constitution

• The NWA repealed the Water Act, 1956 (Act 54 of 1956) and provided a legal framework for the progressive realization of the right of access to sufficient water.

11

The Constitution cont…

The need to review

• While it provides for the progressive realisation of the right to access sufficient water, there is a need to review it to ensure that – there is equity in the allocation of water, – water resources management is improved; and – the regulatory processes are streamlined.

National Water Act

13

• There is a need to review and update the WSA to align it with – Strategic Framework for Water Services (2003)– the significantly revised local government legislation which

came into effect after this Act, including the Municipal Systems Act, 2000 (Act 32 of 2000)

• The recent restructuring of government departments after the 2009 national elections also necessitated the need to amend and update the legislation.

Water Services Act

14

• The task team looking at the review of the Water Research Act ( Act 34 of 1971), recommended minor amendments to the Act

15

Water Research Act

The reasons for review

• The NWA has now been in operation for more than ten (10) years so it is an appropriate time to– measure its success, – highlight its weaknesses; and – determine its challenges.

• The NWA is a progressive piece of legislation acknowledged internationally and despite the progress made since its enactment, there are shortcomings when it comes to issues of enforcement and implementation.

The National Water Act

17

• The regulation to support the implementation of the NWA had not been integrated;

• The Water Allocation Reform programme has been lagging behind and this had resulted in redress and equity not being effectively achieved;

• The establishment of Water Management Institutions has been delayed due to uncertainties around the future and transfer of staff;

18

The National Water Act cont…

• Challenges are being experienced with developing a sound asset data base for all the water resources infrastructure in the country;

• The issuing of water use authorisation has been a long and complex process due to the fact that delegations have not been completed to pro-Catchment Management Agencies ( CMA’s);

• Recognition of the importance of Water User Associations due to a lack of transformation had been problematic;

19


• The sector did not have a strong communication and marketing strategy for water resources management;

• Water resources management has been completely under resourced ; and

• Water quality issues need to be addressed more effectively.

20


• The enforcement of the NWA is also weakened by the fact that it does not specify the penalty to people or government entities that pollutes the water resources. For example the offences made by government entities create indecision in the implementation of the NWA because Chapter 3 of the NWA does not specify how the situation should be handled in cases where the polluter is a municipality.

21


• The NWA does not satisfactory address instances of chronic pollution because polluters could basically carry on polluting while continuing to pay their fines. Therefore enforcement should be strengthened through penalties.

• There have been problems identified with the transformation of Irrigation Boards into Water User Associations because target set in section 89 of the NWA have not been met, hence a review is proposed.

22


• Negative aspects have been reflected of the NWA in ensuring effective water resource management. It has been highlighted that creation of CMA’s for effective water resource management is important but the slow progress in the establishment of the CMA’s has proved to cause challenges in enforcing the NWA.

23


• The management of water resources in the mining sector and how it relates to future economic growth and development in the country is a challenge. Two critical aspects had been identified:

- The period it takes to submit an Integrated Water Use License. Applications take a long time before a license is issued, and the enforcement and auditing of water resource use and management is a challenge.

24


25


The Act must be revised to adequately address the following;• To provide for amendment of the definition of the Water

Services Act 9 (a number of definitions and amendments to existing definitions is provided for in the Strategic Framework for Water Services);

• To provide for the Minister’s authority in respect of norms and standards and to amend the current regulations promulgated under section 9, 10 and 19 of the Act;

26

The Water Services Act

• To provide for roles and responsibilities of the sector role-players (Water Services Authorities, Water Service Providers, the Department of Water Affairs, provinces, other National Departments, Water Services Agents etc) to be clearly provided for;

• To provide for a number of requirements reflected in the consumer Strategic Framework for Water Services such as consumer contracts, consumer charters,

27

The Water Services Act cont…

• High levels of service, business plans, asset registers, free basic water services, credit control and debt collection, water sector plans and lodging of consumer complaints with the Minister among others;

• For water resource management to be more closely aligned to water services;

• For planning and reporting requirements of the various sector lead departments to be coordinated;


• For the process of assessing and appointing Water Service Providers to be clarified and simplified;

• To distinguish clearly between local and regional water services and service providers as the regulatory role of water services authorities and Department differ in respect thereof;


• To improve governance and regulation of regional providers, specifically water boards;

• To better provide for measures to ensure legislative compliance (regulatory instruments);

• To simplify the intervention processes and procedures provided in the Act;

• For the Ministers of various sector Departments to collaborate on the issuing of regulations which impact on water services provisions;

30


• To amend the financial provisions of the Act to better reflect the latest policy and legislative positions in terms of the Municipal Finance Management Act, the Division of Revenue Act and the Municipal Infrastructure Grants, among others and

• To reconsider certain provisions of the Act such as the Chapter on water services committees.

31


• Considering the fact that the process to review the water legislation started in 2006, some information that we are having is no longer relevant. Also there might be people who can provide valuable information now that were not part of the process in the beginning.

• There were also others who were part of the process at the beginning, who are no longer part of the process due to migration or movement (i.e who are no longer in the water sector or the department)

Way forward

32

• That has led to the institutional memory loss, and therefore it is recommended that the process to review the water legislation should start from the beginning. The information that is available will be used to supplement the new process.Hence the following steps should be undertaken in order to get going:

33

Way forward cont….

- Identify the areas / sections in the water legislation that need to be reviewed.- Analyze the effects of the intended / proposed

review.- Formulate a policy document, that will clearly

stipulate what the department wants to achieve by reviewing the legislation.

34


To address all the challenges with regards to the implementation of the water legislation in order to ensure that objectives of reform decentralization and service delivery are achieved through proper consultation with internal and external stakeholders.

35


According to the Project Plan, the Bills will be tabled in Parliament in October 2011.

36


Regulations Regulations intended to be published for

public comment or promulgated in 2011:• Water Conservation Regulations• Revised National Norms and Standards for Water Services• Dam Safety Regulations• Regulations on the Establishment of a water Resource

Classification system• Waste Discharge Standards• Water Use Monitoring and recording

37

THANK YOU

Documents

Legislation review