Eradication of Illegal Water use: briefings by Department and Water Tribunal

Water and Sanitation

23 October 2007
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Meeting Summary

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Meeting report

WATER AFFAIRS AND FORESTRY PORTFOLIO COMMITTEE
24 October 2007
ERADICATION OF ILLEGAL WATER USE: BRIEFINGS BY DEPARTMENT AND WATER TRIBUNAL

Chairperson:
Ms C September (ANC)

Documents handed out:
Compliance Monitoring and Enforcement 24 October 2007
Progress Report on the Activities of the Water Tribunal 2001 - 2007
Minutes of Meeting 12 September 2007
Minutes of Meeting 26 September 2007

Audio recording of meeting

SUMMARY
The Department of Water Affairs and Forestry and the Water Tribunal briefed the Committee on the steps taken to monitor and control illegal water use. The Department adopted a zero-tolerance approach to infringements. The background and legal perspective of water licensing was set out. The regulatory authority was to ensure compliance with legislation, regulations, standards and policies, and to moderate water supply prices. Environmental considerations were high on the agenda, and compliance must be geared to realising the benefits envisaged when making policies and laws. The Department would like people to choose to comply because they realised that enforcement was inevitable and effective. At the moment there was a problem in the Department not acting swiftly enough and an action plan had been developed to assist with identification of roles and responsibilities and management capacity. Compliance and enforcement would be done through increasing awareness in the legal system, use of the media, best practice and branding of a “firm but fair” image.

The Water Tribunal was an independent body dealing with appeals brought by people who wished to appeal against decisions of the Department in relation to water licences, amendment of conditions, or imposition of directives. It also conducted surveys regarding water use. It had offices in Pretoria, but appeals could be heard in other provinces. There had been 36 appeals in the last six year and the number of cases was small.

Members interrogated a number of issues around both the activities of the Department and the Tribunal. They questioned whether there was justification for the existence and funding of the Tribunal, whether it should have permanent offices, and how best to increase its profile. Its procedures, in particularly informing members of the public of their rights, were debated extensively. Further questions related to the gender representation of the Tribunal, and specific cases in Barberton and the Free State, the licensing of borehole operations and sinking of boreholes, what would constitute illegal tapping into taps or rivers, the situation in many farms where farmers were apparently denying access to water, whether the legislation was strong enough to enforce the constitutional rights of access to water, the types of matters appealed against and the budgets. The capacity, location, and enforcement to assist the rural and poor people were also debated. The Chairperson noted that there were still problems at the West Coast that needed to be resolved. This Committee had learned from the presentations that there remained much to be done to sensitise the public to the Water Tribunal, and that once the Catchment Management Agencies were working the Tribunal should see more work. In regard to the grey areas identified by the Tribunal, she suggested that the Department should re-examine the Act and Regulations to ensure proper implementation.

The Committee adopted its minutes of 12 and 26 September 2007.

MINUTES
Ms September announced that the Minister of Water Affairs and Forestry had lost a brother, and it was agreed that the Committee would convey its condolences to her.

Water Use: Compliance Monitoring and Enforcement: Department of Water Affairs and Forestry (DWAF) Briefing
Mr Nigel Adams, National Manager: Compliance Monitoring and Enforcement, DWAF, announced that the Department would outline the progress and status quo of Compliance Monitoring and Enforcement. He pointed out that the role was not to politicise the Water and Forestry sector, but to ensure compliance and monitor water use activities. It adopted a zero-tolerance approach to infringements.

Ms Mmaditonki Setwaba, Director: Legal Services, DWAF, set out the progress from a legal perspective. She noted that Section 27 of the Constitution guaranteed the right of access to sufficient food and water. This meant that authorisations would assist in ensuring protection of key water resources. The functions of the regulator were to ensure compliance with legislation, regulations, standards and policies, and to moderate the price at which water was supplied. The water regulatory was accountable to the General Assembly and must report on performance once a year.

Compliance was full implementation of environmental requirements. If the requirements were well designed then compliance would achieve the desired environmental result. Enforcement was the set of actions taken by Government, and would include inspections, negotiations and legal action where necessary. It was important to bear in mind that compliance was critical to realising the benefits envisaged by policy and laws. Environmental economics sought to identify the most efficient solutions. Equity was another important consideration.

Enforcement could be used at a deterrent level, where people would opt to comply rather than to violate. The choice to comply would be dictated by a belief that non-compliance would be detected, that there would be a consequence of a sanction or penalty and that there would be monitoring.

Mr Adams continued that the problem at the moment was that DWAF was not acting swiftly enough in dealing decisively with unlawful water use, which led to a negative social, environmental and economic impact. The purpose of the action plan was to assist the regulatory authority to identify its roles and responsibilities and build management capacity. It would do so in terms of the National Water Act and the Water Services Act. Mr Adams tabled graphs to show the linkages and the progress. He further set out recent lessons learned in the various provinces.

He stated that in order to speed up the processes, DWAF was in the process of appointing two implementing agents to support and implement, as well as undertake research and development, to assist national and regional offices. The details were included in the presentation (see attached report). Compliance and enforcement would be done through increasing awareness in the legal system, the media, adopting a best practice approach and cultivating a “firm but fair” image. Joint operations between various Departments would be conducted.

The Chairperson was concerned that Members did not have documents, and reiterated that all documents must be consolidated so that Members would have them ready to read on the day preceding the presentations. In future the presenters would not be permitted to address the Committee if they had not brought copies of their presentations.

Progress Report: Briefing by the Water Tribunal
Adv Majake Mabesele, Chairperson, Water Tribunal, explained that the Tribunal was an independent body dealing with appeals brought by people who felt they had been treated unfairly by the DWAF if it had turned down applications for water licences to water users or applicants, or had refused to amend licence conditions. It was set up in terms of the provisions of Section 146(1) of the National Water Act, and embraced all the provinces of the Republic. Its mandate was to conduct surveys regarding water use, and particularly to hear appeals against the DWAF’s rulings on licences or licence conditions and directives relating to certain conditions of the Water Act.

The Tribunal had been started in 2001, and members occupied office for a period of three to four years. The offices were in Pretoria but some appeals were heard in other provinces if the Tribunal felt it would be more useful to have the case heard in the province of the applicant, particularly if it needed to conduct site inspections. Extensive costs were incurred in an appeal. For the period 2001 to 2007, there had been thirty-six appeals before the Tribunal. Sometimes the Tribunal did not sit for almost four months and the number of cases before the Tribunal was decreasing each year. It was not known whether water users not complying with the law had decreased, or whether there was no investigation regarding illegal water use. Although the numbers were down, expenditure had increased. The main expenses were in accommodation and air travel, and office rental, which amounted to R7 500 per month. The offices were not sufficiently utilised due to the very few appeals before the Tribunal. It had not received any cases from previously disadvantaged communities.

Discussion
Mr P Ditshetelo (ACDP) noted that when the Tribunal started there were only four members, but this number had increased to five.

Adv Mabesele clarified that the composition of the Tribunal was five members; three ladies and two gentlemen; and the Deputy Chairperson was a woman.

Mr Ditshetelo said that according to the statistics there was little work for this Tribunal. While it may have been founded for good reason, he thought it was too expensive to run such an organisation. He suggested that there be a review of this Tribunal as however noble the intention, the implementation of it was really not justified.

Ms M Manana (ANC) asked for clarification on gender representation.

Ms Manana asked in particular on how the Tribunal was being promoted so it was made known to the public, perhaps water users were not approaching because they were unaware of the route they could take.

Ms Manana noted that the Department had been approached about the need to speak to the Water Users Associations in various provinces and the municipalities to make them aware of the existence of the Tribunal. Many people in this country were not aware of it. There were problems around the mandate and the cost. Although a person would be informed by the Department that he could approach the Tribunal if a decision of the DWAF was not in his favour, that was not really sufficient because there should be further information also about appeals and the entire process, including the cost.

Ms Manana asked for clarification on problems with a dam in the Barberton area, and asked how far this had progressed.

Mr B Mosala (ANC) referred to happenings in the Free State and two municipalities being investigated there. He asked for the identity of those municipalities and why they were being investigated.

Mr Mosala concurred with Ms Manana that there were people sitting with problems not knowing how to seek assistance. He noted that there were emerging farmers around Bloemfontein who were getting assistance, and he wondered if they could approach the Tribunal if they did not have the means of defending themselves or to deal with a problem.

Mr Arendse noted that when these presenters had first come before the Committee, Western Cape was emerging from a drought and a question was raised at the time regarding people who used boreholes and drilled boreholes. Every borehole needed a licence. Many companies advertised the drilling of boreholes, and many people were having boreholes drilled and using the water. He asked if those activities were regulated and who looked at compliance to the regulations.

Mr Arendse asked, in relation to the Constitutional rights, what was done in cases where farm owners did not provide, or cut off, supplied of water to their workers. He asked if any amendments to the Water legislation were required to enforce compliance of these rights.

Mr Arendse noted that many cases were going to court. He asked about the technical aspects of the cases.

Mr Arendse asked Adv Mabesele whether the Chairperson and the Deputy Chairperson of the Tribunal were employed full time or part time. He further asked for clarity what the determination on salaries had been, how many officials of DWAF were seconded to assist with administration in the Tribunal.

Mr Arendse enquired if there had been any cases of omission by the Chair or Deputy or any member, and, if so, what were the reasons for those omissions, since the Act said a member would not be held responsible for an act or omission done in good faith.

Mr Arendse noted that there were thirteen different areas where a person could appeal to the Tribunal. He asked in what aspects the appeals had been made.

Mr Arendse asked if the Tribunal was working closely with enforcement agencies to ensure proper enforcement and proper rights were observed. He commented that the low case load might change.

Ms M Nkompe-Ngwenya (ANC) asked about the number of appeals, commenting that perhaps the numbers were declining because inspections were not being done properly. The low number could be due to people abiding by the law, or a fault in the investigations.

Ms Nkompe Ngwenya asked if the Committee would be receiving accurate expenditure figures later. .

Mr M Swathe (DA) was concerned at the decrease in the number of cases but commented this could be due to the cost.

Mr Swathe asked how the Tribunal was increasing public awareness of its existence and function.

Mr Swathe was concerned about the budgets allocated to the Tribunal, it seemed it did not have a lot of work to do in terms of the Act.

Mr Swathe wondered what would happen in a rural area if a person drilled a borehole but did not have a licence. He asked what would happen to the users, if they would be charged, arrested, or if this was even a criminal offence.

Ms D van der Walt (DA) did not see Phalaborwa Mines on the list today, and hoped something had been done about it. She referred to the Chapter Nine Institution definition, which stated that no person or organ of state could interfere in the functions of these institutions, and hoped that also included politicians, who should not attempt to prescribe duties.

Ms van der Walt did not believe that the Water Tribunal should be situated in another city. Water Tribunals belonged in municipalities, because they had the facilities and that was where the water rights could be monitored best. It was easier to ensure that people could go to local government to complain and that the hearing should be held locally. She really believed there was a need to look into a new system and the DA would come up with a better proposal. She was concerned that there was little justification for spending such a lot of money on so few cases.

Ms M Lishiva (ANC) was concerned with illegal connections, asking how they were defined, whether from a tap or the river. In the rural areas there had been theft, which had been reported to the municipalities, who claimed it was not their responsibility.

Mr Ditshetelo referred to the comments about the Free State Region. He was concerned about verbal warnings and asked how they were monitored and assessed. He felt that these could be misused if there was no mechanism of monitoring. He would like all warnings and explanations to be couched in simple and understandable language.

The Chairperson noted that in September last year the capacity in the department was one person; this year and next year it was to be the same. She asked why then there were problems of capacity being cited.

The Chairperson asked what was the view of the department and how it had located this unit, pointing out that it was the role of the Department to ensure implementation of the Act.

The Chairperson agreed with the members who raised the issue of access to poor people, both in regard to DWAF and the Tribunal. South Africa was still sitting with challenges of access to justice, including cases where people needed to seek redress. She was not sure that it was right to call for the Act to be scrapped because of the low number of cases, as this could impact upon the vulnerable people. People must be assured at all times of administrative justice and therefore it was impossible to judge an organisation from the number of cases it undertook. She felt that the approach should be different, and that it should be asked whether the Act was being implemented, and whether it gave sufficient expression to everyone. It was the committee’s duty to see whether implementation was effective, because there was an imbalance in the country insofar as water was concerned, and it was difficult to decide on illegal use where there was no other access to water. She would like to know how the DWAF would address this issue.

The Chairperson pointed out that the Portfolio Committee had recently conducted oversight visits and could not understand why the Act was not being implemented, particularly in relation to breach by big businesses. There had recently been a documentary on television about the mines. The Committee was not sure that there was proper alignment at all times on the question of licence grants.

The Chairperson asked what was the lead-time of cases and how long they would take to complete and what was involved.

Advocate Mabesele replied to these questions in general, expounding further as he dealt with the broad areas covered by the questions.

He firstly explained that there were no costs in bringing a case to the Water Tribunal; if the appeal was lost there were no costs awards. The idea was to encourage and give members of the public access to justice. He would take this issue up with the Department again.

In regard to the Board, he said that both the Chairperson and Deputy were employed part-time. For the hearing of an appeal, the Chairperson received an allowance of R2 500, and R300 per preparation. The Deputy would receive R2 000 and R200 per preparation.

Ms van der Walt asked how the rate and tariff were determined.

Adv Mabesele responded it was based on seniority.

He noted that there had never been a case of omission on the part of a Tribunal member.

Turning to the nature of the appeals, he noted that there were thirteen listed in the Act. Most of the cases set before the Tribunal were directives, decisions against directives and decisions against granting licences. In terms of Section 148 there had been various matters including claims against the Catchment Management Agency. He didn’t know whether the Catchment Management Agency had been established because they never had any appeal.

Responding the question on the accuracy of claims and late submission, he urged the committee to accept and trust the report. He noted that members would submit claims.

With regard to the comments around expenditure, he clarified that the risk involved had to be taken into consideration. If the Tribunal had to terminate a person’s licence, there was the risk of an appeal against that decision, and if that appeal went to the High Court, one case could cost as much as R300 000. His view was to rather put heads together to ensure the proper decision was made to avoid huge costs.

In regard to the time frames, the decision could be given immediately after hearing the case.

Insofar as the costs of the Tribunal having its own offices was concerned, he noted that it was not that easy to do away with the offices. Members of the public should know that those were the independent offices of the Tribunal. Some were sending their appeals straight to the Registrar of the Water Tribunal. Appeals had to be submitted within a certain period of time, and if there was no permanent seat for the Tribunal, people would become frustrated.

The Members of the Tribunal were appointed on the basis of their legal knowledge, knowledge of water and water resources; and at the discretion of the Minister. If people with no legal background were included, people with legal background must be present. To ensure full participation written submissions would be allowed.

The Tribunal was allocated R1,2 million each year. He agreed that it was important to publicise the Tribunal so that people were made aware of its existence.

When doing compliance enforcement, people would be informed of their right to appeal.

Mr Adams said that the dam in the Barberton had been demolished and the rehabilitation plan submitted to the Department.

In regard to the question on the Free State, Mr Adams noted that a complaint had been made to the Police by a private citizen and the Department was requested by SAPS to assist it with the investigation, which was currently being referred to the Public Prosecutor for prosecuting.

On the issue of boreholes and drillers, he said that regulations were being developed for drillers to register with the department, but anybody could drill a borehole without a licence. Once they started pumping the water, if it was not for Schedule 1 human consumption, but for commercial use, then a licence would be needed. If people sold water illegally from boreholes, this was a criminal offence and could be prosecuted.

He noted that the Department worked very closely with the Department of Environmental Affairs on the sewage system. The Department’s Public Prosecutor chaired the Environmental Prosecuting Forum. An advocate had been allocated to just deal with water related crimes in the Free State.

The Department also worked closely with the Water Tribunal with regard to enforcement. The Water Tribunal was an independent body and made sound decisions.

Mr Adams explained the procedure around complaints and compliance. On receipt of a complaint the Department would investigate, and would send the owner or the possible transgressor three directives. Firstly there would be a notice that he was transgressing. If there was no change in the activities, then a directive would be forwarded to instruct him, within a reasonable time, to take certain steps. The address and contact details of the Water Tribunal would be included, together with a note that a person could appeal against the directive within thirty days. Clearly, therefore, people were informed of their rights, including the right to appeal. If they wished to discuss the matter, the Department had an open door policy. If there was still no compliance, then the Department could either institute criminal proceedings, or the Minister could issue an instruction, go through the process and then claim back the money spent or any costs involved.

There were various reasons for the decrease in cases. People did not often want to follow the appeal route and would prefer to adhere to the directives.

The Department followed various routes to enforce the licencing. Where a person had constructed an unlawful dam, the Department gave a directive to stop construction. The person then indicated he wanted to apply for a licence. A licence application was different from ensuring compliance. The Department would stop progress until such time as the licence was granted.

In relation to the question on Phalaborwa Mines, Mr Adams explained that problems were picked up, and especially around Loskop Dam and the Wilge River. There were a lot of defunct mines; and in this regard the Department was talking with the Department of Minerals and Energy and CEOs worked closely together. They had picked up that it was very difficult to determine which mine was the source of the problem. Monitoring systems were installed to see what was coming out of which plant, because the transgressors released the effluent at night.

In regard to connections, Mr Adams explained that a tap was the responsibility of a water service authority. The department’s toll free number would allow people to phone in and report transgressions, and the Department would refer the complaints to the municipalities, who could then enforce the by-laws, if necessary with Departmental assistance. Unlawful connections meant unlawful pumps extracting from a river or a bulk cistern. In the Free State there was also a pending case where a person had drilled through the Department’s main pipeline and that too was considered an unlawful connection.

Mr Adams responded that verbal warnings could be used if the person complied with requests, and the severity of the transgression would also determine the sanction that was applied. Other practical issues such as priorities and importance of the matter must also be taken into account; whether it was worth putting time into something that could be quickly resolved in another way to concentrate on more serious issues.

In respect of capacity, Mr Adams noted that one year ago there had been one staff member at Head Office. The Department worked with other units so as not to duplicate services. In the regions, structures were approved and people were appointed in acting positions because the Department was busy with restructuring and contract service providers could assist the regional office in executing their duties much quicker.

Mr Adams noted that the Department was also busy examining a case, in which a task team had been formed, where 1.3 million litres of jet fuel had been spilled into a dam. The Department was very happy with the progress made on the rehabilitation and as part of cooperative governance the department it was assisting the Airports Company of South Africa (ACSA) and government departments around the rehabilitation. The Department of Environmental Affairs and Tourism had laid criminal charges against ACSA in terms of the National Water Act, and the two Departments were working closely to ensure successful prosecution.

He also noted that the Department was monitoring and clamping down on mines.

Ms Setwaba responded to the question of emerging farmers in the Free State and their problems with the Irrigation Board. In terms of the National Water Act the Irrigation Board was transformed to the Water Users Association. The intention was to have all water users forming a cooperative association. The Department’s Chief Director had oversight and his mandate was to ensure that the Irrigation Board was transformed into a forum where members of the Irrigation Board and emerging farmers would be able to meet. Regulations would be published in the near future to grant subsidies to resource emerging farmers.

She added, in regard to illegal connections, that a person would be permitted to take water from a river for personal use, but they would not be permitted to sell it without a licence. The reason was to monitor pollution and water supply.

Ms Setwaba said that the number of cases before the Tribunal would increase. Compulsory licensing would inevitably result in adverse decisions that people would wish to appeal. This was the reason for promoting the awareness of the Water Tribunal.

Mr Adams responded that some of the instances brought before the court had resulted in an agreement that the Department must public regulations in regard to water use, and the Chief Magistrate and the Department had negotiated and agreed upon fines to be imposed. The Department would tend to work closely with he local authorities.

Adv Mabesele brought the Committee’s attention to an issue that was very frustrating for the Tribunal. Water Affairs had issued a directive to somebody to stop using water unlawfully. A person lodging an appeal would often call for postponement, and if, six months after the directive, the same person was continuing to ask for postponement there was a danger that the illegal water use was continuing. Some matters were proving difficult to finalise. He had had a case the previous week when the officials finally agreed to postponement only when the Tribunal had already been convened, with cost implications.

Ms Manana noted that she was not happy with the answer on the Barberton dam being demolished. The Committee had been told that the Department was likely to arrest the people.

Mr Adams that one week after the dam was demolished, the owner died.

Ms Manana said she understood that person was a high ranking politician from Mpumalanga.

Mr Adams confirmed that this was so, but when the Department made enquiries, his wife reported that he had died.

Mr Mosala asked for clarification on the two municipalities. He understood the cases were sub judice, but noted that enforcement was necessary because public health was under threat because this was a sewerage problem, yet the municipality was doing nothing. The citizens were being punished because of their location alone. Certain things were allowed to happen in some areas that would not be tolerated by others. He felt that more effort was required.

Mr Adams noted that this process dated back to 2001, and that there had been raw sewage spills into the river. A task team had been set up to assist the municipalities and even the Department of Water Affairs seconded engineers to the municipalities to assist them in ensuring compliance. Municipalities had to comply with legislation and where sewage spills occurred the Department, together with Department of Public Service and Administration, would second engineers to municipalities. Citizens were at liberty to lay charges against the municipalities if they felt their rights were infringed.

Mr Arendse noted that the framework to the National Water Act had been outlined. During oversight visits he had learned that farm workers were not enjoying the rights outlined in Section 27(1)(b) of the Constitution. He wanted to know if the legislation spoke of ensuring access to water, and if not, suggested that there might need to be an amendment.

Ms Setwaba said that access to water was a constitutional imperative. In terms of the Water Services Act, an employer was obliged to make sure that the employees on his premises had access to water and sanitation. The Department supported municipalities in terms of drafting water service contracts, to provide for issues that municipalities may take forward. An employer with a licence would have to ensure access to water. There would be a clear breach if this did not happen.

The Chairperson noted that there were still problems at the West Coast. This was linked to rollout of ensuring access to water on farms. Farmers had a general responsibility when it came to water issues, and this needed to be resolved.

The Chairperson noted that the lessons learned out of these presentations were that there remained much to be done insofar as introducing the public to the Water Tribunal. People should be given more information on how these institutions were working. The Water Tribunal appeals were set up around the functions of Catchment Management Agencies, which were not functioning properly yet, but the question remained what they must do in the meantime. Certain grey areas had been indicated, and she suggested that the Department must go through the Act and Regulations to ensure proper implementation of the Act.

Adoption of Minutes
The Minutes of meetings held on 12 and 26 September 2007 were unanimously approved and adopted.

Announcement
The Chairperson announced that the Committee was involved in the final stages of the eradication of the bucket system and had been invited by one of the municipalities to physically attend the municipality and build the last few toilets.

The meeting was adjourned.


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