National Water Act Implementation Review : public hearings

Water and Sanitation

22 October 2008
Chairperson: Ms C September (ANC)
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Meeting Summary

The Committee met to consider the Implementation Assessment of the National Water Act of 1998. IT was pointed out that this Act had now been in operation for ten years so it was an appropriate time to measure its success, highlight its weaknesses and determine its challenges.

Public hearings were held, during which a number of stakeholders furnished their comments. Most agreed that the Act was a progressive and sound piece of legislation, and that this was even acknowledged internationally, but that its downfall came in enforcement and implementation. There were numerous references to the inefficiencies of the licensing systems, the slow progress in the establishment of the Catchment Management Agencies and various instances where the practicalities of enforcing the Act were proving challenging.

Despite these difficulties, stakeholders were largely unanimous in their opinion that the Act should not be scrapped and that there was a need to exercise patience, and acknowledge the achievements that had been attained. Some suggested that the Act had not yet revealed its full potential in view of the fact that much of it had not been entirely implemented.

Meeting report

National Water Act, 1997 (NWA): Implementation Review Public Hearings
Opening Remarks
The Chairperson noted that the Committee was to consider the Implementation Assessment of the National Water Act of 1998. IT was pointed out that this Act had now been in operation for ten years so it was an appropriate time to measure its success, highlight its weaknesses and determine its challenges. For this reason a number of stakeholders had been asked to make presentations to the Committee.

Mvula Trust submission
Mr Andile Mahlalutye, representative of the Mvula Trust, noted that the Trust was an NGO active in the water sector, and mainly affected by the National Water Services Act. Mr Mahlalutye highlighted what he saw as the weaknesses in the National Water Act (NWA). He noted that the Act did not specify Regulations, which created uncertainty in implementation of the Act. Chapter 3 of the Act, which dealt with the protection of water resources, did not specify how the situation would be handled in cases where the polluter was a municipality. Mr Mahlalutye suggested the matter should be dealt with separately in the Act, as it posed difficulties. The Act did not sufficiently address instances of chronic pollution. Polluters could simply carry on polluting while continuing to pay their fines. The NWA was to a large extent reliant on its enactment through the Catchment Management Agencies (CMAs). Unfortunately most of them were still not in operation after ten years. The CMAs were supposed to aid in the shutting down of perpetrators and they should be involved in the development of technology in order to alleviate instance of pollution. Currently there was a chronic lack of capacity in this regard.
There was no differentiation in tariffs as this would impact on the viability of the CMAs. Different users needed to pay according to their water use. The Act should take into account the Multiple use purposes of water. He noted that although Chapter 7 of the NWA dealt with the disestablishment of CMAs, it did not include provisions for the merger and acquisitions of weak CMAs by stronger CMA’s. In this regard, Mr Mahlalutye also said the distribution of water resources among CMAs was inequitable.

Furthermore, the NWA did not make mention of the National Water Resource Infrastructure Agency. There were one or two further points, which were more fully addressed in the presentation. Finally, he assured Members that the NWA was a sound piece of legislation but that rules of engagement and recourse in the cases of non-compliance needed to be clarified and enforced.

Xstrata Alloys Submission
Dr Fanie Botha, an hydrologist from Xstrata Alloys, presented his submission, based on his experiences as an employee in the mining sector and a concerned citizen who had spent ten years in the Department of Water Affairs and Forestry (DWAF).

His concern related mainly to the management of water resources in the mining sector and how this would relate to future economic growth and development in the country and the African continent, especially in light of the fact that South Africa was often subjected to droughts and erratic rainfall, and that water was a scarce resource. The Minister of Water Affairs and Forestry was the custodian of this resource and it was that Minister’s responsibility to institute an integrated water resources management system. The NWA required that all water users be licensed and eleven water users were identified. However, in the Rustenburg area, where some of the world’s richest stores of platinum were located, more than ninety percent of users did not have legal water licences. Licence applications submitted in 2001 had still not been processed and in numerous instances documentation had been lost.

Two critical aspects had been identified: The long turnaround period from submitting an Integrated Water Use Licence (IWUL) application linked to the lack of licences being issued, and the enforcement and auditing of water resource use and management. Mr Botha proposed a group of specialists to assist in the review, issuing and auditing of IWULs. He suggested that licensing be based on the catchment management area, as this would make far more effective use of water resources. He said that the policies and guidelines stipulated by DWAF had resulted in huge savings of water usage at Xstrata and they were therefore effective in terms of increases in quality and quantity of the water. He suggested some form of incentive for mining companies to comply with these regulations, similar perhaps to a system used in the United Kingdom where a register was kept of those companies that complied in term of legal requirements, as well as environmental guidelines. Only if they fulfilled these requirements would their shares be registered. He concluded that his contribution should be seen as a positive and constructive contribution to more effective water management.

Business Unity South Africa (BUSA)
Mr Martin Ginster, Member and representative of Business Unity South Africa, said that this body represented business on strategic issues on a national and international level. Water resources had to make a meaningful contribution to economic and social development imperatives. Water was a global issue needing local solutions, but it faced some serious challenges. These included the growing demand, backlog of basic water and sanitation services, increasing water pollution and ecosystem deterioration and climate changes. He referred to the use of local catchment basins being used to improve benefit sharing of water resources. The complexities involved in dealing with water resources were aptly revealed in the Vaal system, which provided the Gauteng area with water. Problems with the treating and re-using return flows and implementing water quality management in an area where water pollution had reached dire levels were further challenges.

Mr Ginster said it was critical for the Act to separate regulation and enforcement from support and advisory work. He also said that roles should be more clearly defined along national, provincial and local government. It was vital to create CMAs for effective water resource management. There was an ongoing debate between water use and water resource protection, controlling through regulation, and by extension the issuing of licences and effective planning, pricing and implementation of water resource infrastructure in order to prevent severe shortages in the future. The issuing of licences was a long and delayed process with impractical conditions and a lack of uniformity in licensing requirements. Capacity constraints were only part of the problem. He suggested that simpler approaches could change matters, thereby streamlining the application process. The CMAs were generally not functioning as intended by the Act. The reduction of Water Management Areas without good reason or consultation was not conducive to good systems, and only added to uncertainty.

In regard to tariffs he said the waste discharge charge system remained controversial. He urged the Department to review the implementation of the Act and to identify more cost effective and streamlined approaches to implementation. The NWA required more regulations providing greater clarity and certainty regarding issues like water resource classification, pricing and allocation. This would make the Act more robust and applicable to the business sector.

The Chairperson noted that the proposed creation of the National Water Resource Infrastructure Agency had been found to be in conflict with the New Economic Development and Labour Council Act, and had therefore been sent back by Parliament.

Mr J Arendse (ANC) asked whether the section in the Act that dealt with determining the responsible party as the owner or controller of the substance that caused pollution was not sufficient to establish culpability.

The Chairperson asked how the Act could be improved upon, especially to address the challenges that had been raised. She asked whether the Act could in any way assist the implementation process and the establishment of CMAs, and whether the principals of sustainability, equity, efficient management, development, protection, and conservation had been addressed by the Act.

Mr Ginster said that while the NWA was undoubtedly an exceptionally good piece of legislation and even was lauded internationally as being quite far-reaching, it still faced many challenges in implementation. He said DWAF still held sole discretion over water tariffs over inter-basin schemes, while CMAs had questionable authority. These areas needed more clarity. There was still inequity in water distribution and the deterioration of water quality clearly indicated that there was still a long way to go.

Mr Botha agreed with Mr Ginster that the NWA was a good piece of legislation which, if implemented properly, would be able to ensure that water resources lasted longer to assist in economic and social development. The implementation needed to be done through the licensing process. The shortcomings of the Act would not be established until it had been properly implemented.

Mr Mahlalutye reiterated that his organisation also fully supported the Act, but that the rate of implementation was slow. He had provided specific recommendations in certain aspects of implementation. Chronic polluters needed to be dealt with differently. They had to be shut down or the necessary changes had to be implemented to prevent further pollution by them. Municipalities who were polluters had to be subject to certain punitive measures to ensure co-operative governance. He believed that only certain CMAs should be disestablished, and others should merge.

The Chairperson raised the point that electricity and water could not be seen as equal or similar rights under the Constitution, and therefore could not be dealt with similarly.

Mr Mahlalutye acknowledged that water was a resource for all and for the social good. However, this fact did not detract from the need for firm handed regulation. Instances of non-compliance by municipalities and non-payment of fines by them were unacceptable. There had to be a point at which government no longer supported these municipalities and started regulating them.

Council for Scientific and Industrial Research (CSIR) Submission
Ms Christine Colvin, an hydrologist, Council for Scientific and Industrial Research (CSIR),  presented the findings of the Council on the NWA. The country faced four key challenges and in the context of these four she would measure the effectiveness of the Act. These challenges were listed as poverty, climate change, pollution and capacity and institutions. The role of the CSIR lay in directing research to improve the quality of life for all. This had resulted in the development of methodologies and approaches such as the classification system for rivers, as well as other new ideas that would support the implementation of the Act supported by the necessary science. She agreed that the NWA had been heralded world-wide, for its noble principles of equity, integration, participation and co-operative governance. The Act, however, had not been fully tried and tested through proper implementation, and therefore could not yet be judged on this basis. It faced a key challenge of capacity and institutions, which were, as present, at crisis point, and  which would determine the transfer of skills and capacity. Limited skills were available at national, regional and local levels and the loss of engineers would drastically effect the effective management of water resources. The engineers were so thinly spread that the chain of continuity was at risk. Institutional memory was also being affected as a result of limited capacity.

The watershed focus may be inappropriate for South African purposes since perennial rivers flow in only half the country, and catchment areas drew arbitrary boundaries. A problem-shed focus had been chosen as more relevant. The loss of the Directorate of Geo-Hydrology had also added to a loss of competencies, as integration had been taken to unreasonable lengths. She said only three out of nineteen CMAs had been established. Only a quarter of water usage associations had been converted. Insofar as poverty alleviation was concerned, 18 million people had been provided with basic water and 11 million with sanitation. It had been found, however, that rural communities largely depended on water from rivers and streams for their needs and that in times of floods and droughts their positions were vulnerable. The provision of water did not simply mean the provision of taps and toilets. Whereas economic growth was still needed, 97% of water resources had already been allocated, which meant that efficiency in water usage would have to improve greatly.

Climate change had not been addressed by the NWA at all, and yet by the end of this century South Africa will be faced with considerable changes in temperature and rainfall. Many of the factors that would contribute to these changes were still not quantifiable, especially the determining of tipping point, and much more research would have to be done in this regard. The country was largely semi-arid already and groundwater recharge was low in some areas. Water had to be viewed as a dynamic and not a fixed asset, which would be greatly affected by water resource management. The changes that climate change would bring were not yet predictable, as the inter-relations between crops and natural vegetations had not been determined. Adaptation was the only way to conserve and manage this dwindling resource through methods like underground storage, which would limit evaporation, and various other measures.

She noted that acid mine drainage was a big source of pollution and required an integrated effort from the departments of Water Affairs and Forestry (DWAF), Health (DOH), and Mining and Energy Affairs. This was not happening at present. Waste-water treatment had to be addressed through the “polluter pays” principle. They were losing dilution capacity through the decreasing amount of water available and therefore pollution was having a more detrimental effect. Endocrine disruptors and the effects of the huge load of Anti Retro Viral treatment drugs (ARVs) that were entering the water system could have far reaching results, and some of these were already being seen in animals in the north of the country. Some 500 000 people were on ARVs and the effects of this on the water system were unknown. In Europe the presence of oestrogen in the water system, occasioned by women taking The Pill caused similar unexpected consequences. More research was needed in these spheres.

She summarised that the NWA had been useful in providing guiding principles but needed more appropriate implementation. Integration had to be more directed and co-operative governance and capacity building were of critical importance in improving this shortfall.

The Water Research Commission (WRC): Submission
Ms Eiman Karar, Water Research Commission, noted that the external imperatives for water reform resonated with the internal Constitutional requirements that the State must ensure land, water and related reforms. Water was scarce, and 65% of the land area in South Africa received less than 500 mm of rain per year. Furthermore, it was unreliable, with loss of water through evaporation, variable stream discharge rates, often low rainfall patterns, and use already of two thirds of surface water available annually. The quality was unsatisfactory. Water allocation remained inequitable and there were serious shortages of trained professionals, The data availability and systems compatibility were of concern and prolonged restructuring had resulted in institutional instability.

She noted that the NWA processes had been participative, and it was based on international best practice. It offered the comparative advantage of regulation and was progressive and offered a developmental guiding vision. However, there remained challenges in implementation. It required intensive resources of time, money and people, and needed to empower the poor. There was a mismatch between decentralisation and the human capacity, and cooperation between the spheres of government remained a challenge.

Ms Karar summarised the achievements of the implementation, which included pricing, the forestry sector, the establishment of the Coordinating Committees for Agricultural Water in some provinces and signatures of agreements and development of strategies. However, there were weaknesses in the implementation too, hindered by the fact that the State was both referee and player, there seemed to be no prioritised and measured targeted outcomes, there were too close technical and political interfaces and the need for more partnerships.

Inkomati Catchment Management Agency (ICMA) Submission
Mr Johann Boshoff, Representative, Inkomati CMA, agreed that the NWA was good legislation and that the establishment of CMAs was vital to its success. He took members through various sections of the Act and suggested some changes on a technical level in order to improve the understanding and effectiveness of the Act. With regard to Section 81, which referred to the appointment of the governing board of a CMA, he suggested that this process be more democratic and that nominees should have the necessary skills and expertise and be representative of their people. He also recommended that water management be controlled on a local level, with localised participation and decision making.

The Chairperson asked the presenters whether a state of self-regulation had been reached and whether the Act was imbalanced in terms of regulation and economic consideration.

Ms Karar said there was enough emphasis on economic aspects in the NWA and that the Act was well rounded. She did not think the country had reached a state of self-regulation. The CMAs should be accountable to users, water resources should be sustainable and citizens still needed to be empowered.

Ms Colvin agreed the Act was balanced, but that it was not yet effective in protecting all water resources, which would enable different levels of usage. Implementation was lagging and protective measures were often in reaction to situations, rather than being proactive.

Mr Boshoff concurred that water quality was deteriorating and that implementation was urgently needed.

Ms Maine S (ANC) asked how the country could improve capacity.

Mr Sibuyana (IFP) said the presentations had been very informative and helpful.

The Chairperson asked for clarity on the statement made by Ms Colvin that 97% of all water resources had already been allocated. She asked for input regarding the National Water Resources Strategy, and whether the provisions in the Act should be removed. She also questioned whether perhaps there was not an over-reliance on regulation. She remarked that South Africa was not a federation, but that services were devolved. She asked whether the Act sufficiently addressed the scarcity of this resource.

Ms Colvin said that with the National Water Resource Strategy it had been shown that 98% of water supply, which was considered of high assurance, had been allocated, but that factors like climate change would affect this reliability and make it much more variable. Issues of scarcity and uneven distribution contributed to these factors already and effective legislative measures were in place to some extent to conserve this resource, through the hierarchy of right of use of water. Co-operative governance in local and provincial government was not happening and therefore there was no implementation on this score.

Mr Boshoff said programmes were needed and more information had to be disseminated to the public and users on the need to conserve water. More interaction was needed between municipalities and provincial government in managing water management areas (WMAs) effectively. He agreed that there was not yet equity. This could be assessed simply by checking which individuals had been granted licences since 1994. Transformation in the water sector would have to deal with organisational issues, water allocation reform land reform and water trading. The boards of CMAs should constitute stakeholders. Skills shortages should be addressed and greater clarity was needed on the development of infrastructure carrying water.

Ms Karar agreed challenges were mostly with regard to implementation, and that she had reported on this matter in respect of the work being done by the Commission.

A Member noted that the Act was engaged in demand management and that proper enforcement would effect water conservation.

Surplus Peoples Project (SPP) Submission
The presenters noted that this NGO facilitated land and agrarian reform in Western and Northern Cape. Their objective was to ensure that poor black women and men gained access to ownership of land, natural and productive resources. This was not possible without comprehensive land agricultural and water reform. This was critical in addressing the increasing problem of poverty, unemployment, rural underdevelopment and displacement.

Their submission highlighted the constraints the NWA placed on water transformation for agricultural purposes, democratisation of governance institutions and the extent to which the Act empowered small-scale and resource-poor farmers, and allowed for the redistribution of water resources for the rural poor. It maintained that ten years after the implementation of the White Paper on Water Policy the distribution of water in South Africa remained unequal across class, race and gender. Water management institutions in their current form further entrenched gender, racial and class inequality. The limitations contained in Schedule 1 of the Act, which prohibited the use of water accessed under the Schedule 1 for commercial purposes., was ambivalent about how basic income needs of poor producers ere to be met from the national water reserve. Climate change and its impact on the rural poor meant that irrigation efficiencies had to increase dramatically. Since the NWA saw water as an economic good, it turned water into a commodity to be bought and sold and placed the poor at an immediate disadvantage. It meant that whites and males who were advantaged by racism and sexism in the past were still advantaged today. The commodification of water led to the concentration and exclusion of the rural poor and small-scale farmers.  
South African Institute of Civil Engineering (SAICE) Submission
Dr Chris Herold, Water Division Chairperson, SAICE, expressed concerns that learners in schools in Grade 9 were faced with the choice of what subjects to study in the final years of their school careers and far too many were opting for mathematical literacy, and too few for the study of Mathematics. This choice was based on the erroneous and short term goal of increasing their marks. Their ability to pass their school was in fact precluding them from following further study courses leading to the various Engineering disciplines. Water Engineering was only one of the disciplines, and far from being the most popular choice. In fact this aversion to the study of Mathematics precluded most learners from following the majority of the worthwhile career-centred or practical courses offered by the Centres for Higher Education. This impacted upon the ability of the various Departments of State to provide the much-desired service delivery, as the pool of potential managers simply did not exist. Suitably qualified and experienced managers could not be found and instead people were being appointed to posts that exceeded their capabilities and capacities. This impacted unfavourably upon service delivery
Opkomende Boere van die Weskusstreek Submission
The Committee was by this stage faced with severe time constraints and therefore a summary of the written submission, in Afrikaans, was handed in. The thrust of the submission was that there was not the expected or desired rate of transformation, and a perceived lack of resources by the people of the West Coast region. The cost of water in the Lambert's Bay area, where there were privately owned boreholes, led emerging farmers to feel that there was a necessity to use expensive water for agricultural purposes. In Citrusdal there was a perceived lack of planning, for there were limited water rights, and the large commercial farmers used the available water in order to preserve the nation's food supply or export supply of citrus and thereby reduce the nation's balance of payments problem. The emerging farmers felt that their needs were superior to the nation's food requirements, or any concerns with the balance of payments problem. They expressed concerns that they could not afford to pay the market price for water. They felt that there should be a special low tariff for them on the basis of what they could afford, or were willing to pay, and further that the emerging farmers had no knowledge of their water rights. There had been negotiation with the Railways for the supply of water but these negotiations were not concluded, and there was a concern that the water would not be of the right quality but may well be recycled sewerage water. It was averred that the respective Municipalities were not willing to help and did not respond to representations made and so there was no service delivery. It was submitted that the Municipalities should be encouraged to help emerging farmers, as the dominance of white commercial farmers interests were perceived as a hindrance to the emerging farmers being able to either express their views or afford suitably vocal persons to express their views at the forums.

The Chairperson thanked the presenter for the submission and expressed concern that after the Committee had investigated these aspects some three years ago she was still hearing the same complaints. She felt that nothing had changed and that the Department should be resolute in applying the provisions of the National Water Act.

Eskom Submission
Mr N Govender, representative for Eskom, gave a synopsis of Eskom's written submissions handed in. He cautioned that there was a negative impact from the Act and that similar problems could well arise regarding supply of water as there were currently with regard to electricity,  with dire economic consequences to the nation. He associated himself with the submission by Dr Herold regarding skills development and the negative impact upon the quality of water, and he asked that the Department of Water be fully apprised of these possibilities.

With regard to resources, he expressed dismay over water usage and climate change and warned that the combination would lead to a shortage of water. With regard to the pricing of water he expressed the concern that if water was not costed at its true price, there was a tendency on the part of the public to use it wastefully, with the very real possibility of a consequential shortage in the not too distant future, which would in turn impact upon the sustainability of water supplies. He submitted that there was a need for robust negotiations regarding the cost of water.

Mr Govender pointed out that there were only two Catchment Management Agencies operative in the RSA, and he submitted that these should be strategised. With regard to the question of licensing of water use he submitted that there was no absolute right to use water, and lawful use of water was not clarified by definition in the Act, but should be. He asked that regard be had to Section 67(1), in terms of which the Minister may dispose of water, and asked that the questions of health and safety be considered. He submitted that delays in attending to such aspects would have dire consequences, the full extent of which could not at this stage be assessed.

South African National Parks (SANP) Submission
Dr Freek Venter, Head of Conservation Services, SA National Parks, said that in view of time constraints he would not be following his written presentation. Instead, he showed slides, from mainly the Kruger National Park, which he described as an aquatic biodiversity, rather than the pleasurable game viewing spot.  The slides he showed revealed the impact on the Kruger National Park of the international or cross-border repercussions of other countries building dams. He submitted that this had led to the well publicised deaths of over two hundred mature crocodiles, arising from changes in the water composition of the Sabi River from the building of a dam in Mozambique. This change in the water led to the tails of the crocodiles hardening, so that they could not move them properly, which had led to their death as they were not able to adapt.  Dr Venter added that SANP had isolated two “water hot spots” both of which were in the Western Cape. He submitted that it was customary to solve the problems facing the country by holding Imbizos. and he suggested that a major Imbizo devoted to water was required.

Department of Water Affairs and Forestry Submission
A Deputy Director General from the Department of Water Affairs and Forestry then addressed the meeting. It was noted that it was appropriate to review the NWA at this stage, and ascertain whether and how it could be improved, and whether conditions in the interim had changed, necessitating changes to the Act or in its implementation. Climate change as impacting upon water supplies but it was not easy to determined the extent or direction of such impact. Municipalities, and their notorious inability to deliver services, also had an impact, giving rise to the question of whether any role should be accorded to Municipalities with regard to water. The questions raised about inter-departmental cooperation were also important.

It was noted that the DME also had a role to play. In the Sobantu village there were allegations concerning the impact of mining upon water supplies, and in Richards Bay areas the communities were expressing unhappiness about the activities of the mining corporation, which they alleged had interfered with the water supply and its quality. On the other hand this must be weighed up against the job creation and export of the minerals. There was also the question of the mercury levels in the water and land surrounding the Inanda Dam, close to E-Thekwini.

The Act provided for Catchment Management Associations and there had been a slow development of these and their capacity. However, it was submitted that nothing should be looked at in isolation. The DDG asserted that there were many challenges facing South Africa, and particularly the Department, including the illegal use of water from the Vaal River area, the cost of water, and the introduction of pre-paid meters for the lower income groups, and the limitation to 6 litres a day per person. He submitted that the Department should be afforded time to consider the written and oral submissions and review these against legislation and determine or ascertain where and what changes should be made and that such study should be of an ongoing nature.

Concluding remarks
The Chairperson  then concluded by thanking all for their attendance and participation. She added that this was the culmination of five years oversight of a very necessary resource, both inside and outside Parliament. She expressed the opinion that the Water Act was designed to make major adjustments in the attitude to and use of water and that the approach of the ruling party could be viewed on its website, including the Polokwane Resolutions.  She personally was of the opinion that water should be expropriated from the land owners, and that all users should apply for user permission, and that this was an issue for the Committee to consider and resolve. Arising from this is the question of who were “the people”. She felt that riparian allocations were a loophole which was being exploited by commercial farmers.  but the country was dependent upon commercial farmers for food production and a not-inconsiderable contribution to the exports, and thereby a reduction in the balance of payments. She conceded that there were geo-political considerations with regard to the supply and use of water, which gave rise to a range of issues, one of which was the position of the historically-disadvantaged people, and so she asked the Department to re- consider everything submitted at this meeting.

The DDG gave the assurance that this would be performed by the Department, especially the question of licensing water users.

The meeting was adjourned.


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