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INTERNATIONAL CONFERENCE ON WATER MANAGEMENT IN FEDERAL
AND FEDERAL-TYPE COUNTRIES
CONFERENCIA INTERNACIONAL SOBRE GESTIÓN DEL AGUA EN
PAÍSES FEDERALES Y SEMEJANTES A LOS FEDERALES.
The Institutional Reforms in South Africa
Eiman Karar,
Director of the Water Research Commission of South Africa
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ABSTRACT: In South Africa, government is fragmented vertically between 3
spheres of government, namely national, provincial and local government, as
well as horizontally between departments with different but inter-related
mandates. With the challenges of implementation in an environment of shared
responsibility, it is increasingly being recognised that public / government
institutions must foster institutional cooperation and interaction for efficient
provision of public services, both at the policy-strategy level and the operationalimplementation
level.
Intergovernmental relations have tended to focus on fiscal relations to promote coherent
economic development through alignment of spending on social and infrastructure
development. Poor cooperation between institutions in the implementation of their interrelated
mandates has resulted in inefficient utilisation of scarce resources (through
duplication of work or even opposing objectives) and/or endless disputes.
The National Water Act (Act 36 of 1998) enables the establishment of Catchment
Management Agencies (CMAs) in the 19 Water Management Areas (WMA) established
in South Africa. These CMAs will ultimately take responsibility for all activities required
to enable and support water resources regulation, including authorising the use of water
and ensuring that water related activities are performed in accordance with the Catchment
Management Strategy (CMS) that is developed in the relevant WMA.
The recent Local Government demarcation process and the ongoing specification of the
powers and functions between the District, Local and Metro Councils have further
clarified the roles and functions of Local Government. Local Government is
constitutionally responsible for the implementation and control of a range of activities
that affect water resources. In particular, local government has key responsibilities related
to water resources management (WRM) including ensuring provision of municipal
services, rural development strategies, municipal spatial development and infrastructure
planning, environmental management, including pollution control and waste
management.
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The South African Constitution requires all organs of state and spheres of government to
observe and adhere to the principles and conduct their activities within the parameters of
cooperative governance. Although there is general acceptance and support for this
requirement, the water sector has not been particularly effective at pragmatically
implementing these sentiments nor making them operational. As CMAs are established
and local government continues to take on its Constitutional mandates, the need for
cooperation between these two institutions will be critical to the effective, efficient and
sustainable implementation of WRM.
KEY WORDS: water reforms, catchment management agencies, equity, redress,
cooperative governance
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LIST OF ABBREVIATIONS
WRC Water Research Commission
MAR Mean Annual Runoff
WSA Water services Authority
DEAT Department of Environmental Affairs and Tourism
DWAF Department of Water Affairs and Forestry
WMA Water Management Areas
CMA Catchment Management Agencies
SALGA South African Local Government Association
MEC Member of Executive Committee of South African parliament
MINMEC Minister and MECs
NIGF National Intergovernmental Forum
NCOP National Council of Provinces
IEC Independent Electoral Commission
DPLG Department of Local and provincial Government
IDP Integrated Development plans
NWRS National Water Resources Strategy, first edition of 2004
NEMA National Environmental Management Act 107 of 1998
DFA Development Facilitation Act, 1995
PPA Physical Planning Act. 1991
CARA Conservation of Agricultural Resources Act 43 of 1983
SSA Sea Shore Act of 1935
MLRA Marine Living Resources Act of 1998
NFA National Forests Act of 1998
MA Minerals Act of 1991
MPRDA Minerals and Petroleum Resources Development Act 28 of 2002
NHRA National Heritage Resources Act of 1999
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1. GENERAL INTRODUCTION
South Africa’s water law comes out of a history of conquest and expansion. The colonial
law-makers tried to use the rules of the well-watered colonizing countries of Europe in
the dry and variable climate of Southern Africa. They harnessed the law, and the water, in
the interests of a dominant class and group which had privileged access to land and
economic power. It is for this reason according to the (White paper, 1997) that the new
democratic government has been confronted with a situation in which not only have the
majority of South Africa’s people been excluded from the land but they have been denied
either direct access to water for productive use or access to the benefits from the use of
the nation’s water.
Hydrologically, South Africa is located in a predominantly semi-arid part of the world.
The climate varies from desert and semi-desert in the west to sub-humid along the eastern
coastal area, with an average rainfall for the country of close to 500 mm per year, which
is well below the world average of about 860 mm per year. As a result, South Africa’s
water resources are, in global terms, scarce and extremely limited in extent. There are no
truly large or navigable rivers in South Africa and the total flow of all the rivers in the
country combined adds up to approximately 50 million m³ per year; less than half of that
of the Zambezi River, the closest large river to South Africa. Although groundwater
plays a pivotal role in rural water supplies, the country is generally underlain by hard
rock formations with no major groundwater aquifers which could be utilised on a national
scale (DWAF, 2004).
Attributable to the poor spatial distribution of rainfall, the natural availability of water
across the country is also highly uneven. This is compounded by the strong seasonality
of rainfall over virtually all of the country as well as the high within-season variability of
rainfall and consequently of runoff. As a result, streamflow in South African rivers is at
relatively low levels for most of the time, with sporadic high flows occurring;
characteristics which limit the proportion of streamflow that can be relied upon to be
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available for use. To aggravate the situation, most urban and industrial development, as
well as some dense rural settlements, have established in locations remote from large
watercourses; dictated by the occurrence of mineral riches and influenced by the peculiar
political disposition of the past, rather than by the plentiful availability of water. As a
result, the requirements for water already far exceed the natural availability of water in
several river basins. Widely spread and often large-scale transfers of water have,
therefore, in the past been introduced in South Africa.
These imbalances between the occurrence of and requirements for water are profoundly
evident when comparing some basic parameters with respect to the different Water
Management Areas, as presented by the statistics to follow. Of the 19 WMAs in the
country, only the Mzimvubu to Keiskamma WMA is currently not linked to another
WMA through interbasin transfers, giving effect to one of the main principles of the
NWA which designates water as a national resource.
Four of the main rivers in South Africa are also shared by other countries. These are the
Limpopo, Inkomati, Pongola (Maputo) and Orange Rivers, which together drain about
60% of the land area and contribute over 30% of the country’s total surface runoff (river
flow). Approximately 70% of the gross domestic product (GDP) of South Africa and a
similar percentage of the population of the country are supported with water from these
rivers, making the judicious joint management thereof of paramount importance to South
Africa. Eleven WMAs share international rivers.
Reference to the location of the respective WMAs, schematically showing inter-WMA
transfers, is given in Figure 1.1. A graphical comparison of the natural occurrence of
water, the population and the economic activity per WMA is given in Figure 1.2, clearly
demonstrating the exceedingly varied conditions among the WMAs.
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Figure 1.1 Location of WMAs and inter-WMA transfers
Figure 1.2 Comparison of the MAR, population and economic activity per WMA
The total mean annual runoff (MAR) of South Africa under natural (undeveloped)
conditions is estimated at 49 500 million m³/a, which includes about 4 650 million m³/a
which originates from Lesotho and approximately 2 500 million m³/a from Swaziland,
that naturally drain into South Africa. This represents of the total renewable fresh water
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resources occurring in the country, as a long term average. A portion of the MAR needs
to remain in the river to satisfy the requirements for the ecological component of the
Reserve, while only a portion of the remainder can practically and economically be
harnessed as usable yield.
2. Drivers for water reforms (WRC, 2006)
The water crisis supply driven approaches have exhausted the limited available resources
through the building of numerous large dams meant to supply the limited white
population. With the end of apartheid, 10 fold water demands were to be satisfied. This
promoted a demand driven approach which has redress and equitable water allocations as
central themes (White paper, 1997). During the early 1980s, real data from national
water quality monitoring networks which were established from 1970 onwards began to
offer concrete evidence for the steady and in some areas rapid degradation in the quality
of water resources in South Africa (Roux, et al 2006). This is at the time when the world
started realizing the global climate threats and initial understanding of the causes brought
increased emphasis on environmental sustainability as essential for sustained economic
growth. It was evident that there were strong technical motivations for policy review and
in this sense the political will provided the gap for a necessary technical review
(MacKay, 2005)
The institutional reform referred to here pertains mainly to the policy and organizational
transformation in South Africa which is meant to bring democratization to the
management of water resources. More focus will be placed on Catchment Management
Agencies (CMA); the processes for their establishment and the successes and challenges
thereof.
“The reforms must reflect the requirements of fairness and equity, values which are
cornerstones for South Africa’s new Constitution. It must also reflect the limits to the
water resources available to us as a nation”, the White paper, 1997. The importance of
access to water on an equitable basis has formed part of the political debate since the
development of the Freedom Charter and the establishment of the new South African
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Constitution. (WRC, 2004). The vision for water institutional reforms is hence to yield
better management of water resources where processes are made more effective for
achieving South Africa’s development vision of “better life for all”.
The purpose for the reform in South Africa as stated in Section 2 of the NWA is “to
ensure that the nation’s water resources are protected, used, developed, conserved,
managed and controlled in ways that take into account;
1. meeting basic human needs of present and future generations;
2. promoting equitable access to water;
3. redressing the results of past racial and gender discrimination;
4. promoting the efficient, sustainable and beneficial use of water in the public
interest;
5. facilitating economic and social development;
6. providing for growing demand for water use;
7. protecting aquatic and associated ecosystems and their biodiversity;
8. reducing and preventing pollution and degradation of water resources;
9. meeting international obligations;
10. promoting dam safety and
11. managing droughts and floods.
And for achieving this purpose, to establish suitable institutions and to ensure that they
have appropriate community, racial and gender representation.
The South African Constitution serves as the base for establishing and promoting
cooperative governance between government institutions. The South African government
systems of distinctive, interdependent and interrelated spheres of government serve as the
other driver for cooperative governance. Based on these factors, a number of mechanisms
and initiatives have been developed to promote cooperation between and within
government institutions. These mechanisms are discussed later in the document.
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The Constitution sets out three spheres of governance as independent and distinct but at
the same time interdependent and interrelated. The three spheres are National, Provincial
and Local Government. Different to the previous Apartheid Government System, the
constitution recognises the independence of each sphere of governance while linked to
central government. The distinctive character of each sphere of government, according to
the constitution of South Africa means that each sphere has a degree of legislative and
executive autonomy. Each sphere is distinguishable and has powers to make laws and
execute them. The interdependent nature of each sphere, relates to the degree to which
each sphere depends upon another for proper fulfillment of its constitutional functions.
Within this character of interdependence there is a duty of monitoring other spheres, the
responsibility for empowerment and oversight and intervention when a sphere is failing
to fulfill its constitutional role. This happens in a hierarchical manner where national
government monitors and intervenes at provincial level and provincial government does
the same for local government. The Interrelated nature of the spheres of government
fosters cooperation with one another in mutual trust and good faith for the greater good of
the country as a whole.
The three characteristics (distinctive, interdependent and interrelated nature) on their
own pose challenges to cooperative governance, as they require each sphere of
government to have executive autonomy while depending on and cooperating with one
another.
The implications of the above are that, even though the three spheres of governance may
be distinct and independent of each other, they cannot function without cooperating as
their planning and decision-making is influenced by each other. Further to this, Section
155(7) of the constitution gives the National and the Provincial spheres the executive
authority to oversee the performance by the municipalities in relation to their functions,
specifically matters indicated in schedule 4 and 5 of the constitution and any other
matters assigned by legislation to local government institutions.
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In achieving this cooperation, Section 41(1) of the Constitution sets out three specific
principles that should guide cooperation between the institutions. These are:
a. Unity
b. Decentralisation
c. Cooperation, which includes the following:
I. Fostering friendly relations between all levels of government;
II. Assisting and supporting one another;
III. Informing one another of, and consulting one another on, matters of common
interest;
IV. Coordinating their actions and legislation with one another;
V. Adhering to agreed procedures; and
VI. Avoiding legal proceedings against one another.
The implications from the above is that all spheres of government and organs of state
should work towards promoting good working relations with one another in order to
effectively and efficiently deliver services to citizens. In working together the National
and provincial government should support and strengthen local government institutions in
performing their functions.
2.1 Types of Governmental Relations:
(i) Inter-governmental Relations:
(a) Horizontal Inter-governmental Relations, i.e. the relationships between
the two or more government institutions within the same sphere of
governance, e.g. Department of Water Affairs (DWAF) and
Department of Environmental Affairs and Tourism (DEAT).
(b) Vertical Inter-governmental Relations, i.e. the relationships between
the government institutions or agencies from different spheres of
governance.
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(ii) Intra-governmental Relations
(a) Vertical Intra-governmental Relations, i.e. the relationships that exist
within the hierarchy of the institution, e.g. Council, Municipal
Manager and the heads of departments.
(b) Horizontal Intra-governmental Relations, i.e. the interaction of
officials and functional sections within organisations.
(iii) Extra-governmental Relations
This refers to the relations and interactions between the officials of
governmental agencies and external institutions, which include private
sector institutions as well as non-governmental institutions. These
relations manifest themselves in different, dimensions, depending on the
functions and mandates of the department. The following may be the
categories or dimensions of extra-governmental relations:
Figure: Types of Governmental Relations
Source: Du Toit, Van Der Waldt, Bayat and Cheminais
Vertical
Nation
Provinci
Local
H i t l I t t l R l ti
DEA DWAF DLA
City Engineer City
Treas.
Chief Protection
Director:
Vertical Intragovernmental Relations
Ex
tragovernme
ntal
Relations
NGOs
Civics
Media
Council
City
Manag
er
H d
Govt.
Instituti
13
The figure above gives reference to the various types of relations that could exist between
and within institutions. Vertical intergovernmental relations present a case of
constitutional mandate where relations are also governed by certain provisions of the
constitution. These provisions are relations of hierarchy between national, provincial and
local government. It is also the overriding powers granted to the parliament if there is
proven failure by a sphere of governance to perform the expected functions. The
implications are that the parliament, national government and province are granted
powers to intervene and implement measures necessary to achieve the intended
objectives.
Contrary to powers to intervene, water resource sector presents a different scenario. Both
vertical and horizontal intergovernmental relations present a case where there are
mandates that impact on another sphere or department yet there are no powers to
intervene if certain obligations are not fulfilled. This refers to national mandates that
interfere with local government mandates. Reference can be made to the subject of the
study, i.e. water resource management mandate impacting on local government mandate
and vice versa. The other reference can be environmental planning activities by DEAT
requiring DWAF cooperation. The consequence of these instances is the need to create
cooperative relations between institutions in order to complete the cycle of mandates.
However these cooperative relations should not create an opportunity for other
institutions to perform functions which they have no mandate for. Water resource
management remains a national mandate and the CMA is mandated to perform this
function on behalf of DWAF. Functions such as water services remain a local
government mandate; no other institutions may perform it unless it is based on contract
with the Water Services Authority (WSA).
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The relations in this instance are not based on hierarchy, but it is based on cooperative
relations that need to be developed and be complemented with relevant mechanisms.
Cooperation that takes place between institutions should respect each others’ autonomy
and view each other as equal partners.
3. Current Mechanisms and Strategies for Cooperation
In the endeavors to encourage cooperation between the institutions, the government of
South Africa has engaged in a number of mechanisms and strategies. However within
these mechanisms and strategies there are a number of challenges that pose as major
obstacles to the intended vision. Cooperation between government institutions occur at
different levels, it is therefore important to note where there is interaction and the
challenges that are faced.
3.1 Cooperation at political / management level
MINMEC
This is committee/ meeting between the minister of a specific department and the MEC
of the department from the nine provinces. Depending on the nature of the department,
the committee may include representatives of other intergovernmental structures, e.g.
chairpersons of SALGA (South African Local Government Association) sitting on the
Minmec of Provincial Affairs and Constitutional Development Minister and the MECs
for Local Government. The Minmec’s role is to ensure cooperative governance,
consultation and cooperation at political level between the spheres of governance on
matters relating to the ministry. The matters may relate to the legislative discussions, e.g.
National
Provincial
Local
DWAF
CMA
Local Government
Relations based on cooperative relations with no
powers to intervene.
(Interrelated Nature)
WRM
Water Services
Relations based on constitutional mandates with
powers to intervene.
(Interdependent Nature)
Figure : Relations with / without powers to intervene
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white papers, development planning and strategies, etc. The overall objective of the
Minmec is to manage partnership and institutional arrangements that go beyond
boundaries.
The Challenge for MINMEC
In as much as the Minmec proves to be one of the major structures to achieve
cooperation and coordination, it has been seen as overriding the autonomy of the
provinces in certain aspects of governance. Currently seen as the main area of contention,
are the provincial powers and the extent to which the Minimec overrides the provincial
legislature and executive to determine the policy. In certain instances the Minmec tends
to provide an alternative channel for policy making to the established provincial
channels. The procedure in principle is that the provincial policy is determined by the
executive headed by the Premier. The MECs are therefore bound by the decision at this
level as well as by the provincial legislature. However in reality the policy issues agreed
upon at the Minmec may result in pre-empting the work of the provincial legislature. The
results are that the provincial executive may end up facing the need to implement policy
that it has not approved. The challenge here is that, who are MECs answerable to
between the minister and the provincial structures?
Inter-governmental Forums
A Forum that is comprised of political office bearers from the three spheres of
governance. The forum serves to promote intergovernmental cooperation and decisionmaking
between different levels of governance.
Inter-governmental Forum (National)
The National Intergovernmental Forum (NIGF) was established in 1994 to promote
dialogue between the national and provincial governments as well as cooperation,
consultation and consensus on matters of common interest. This body constitutes the state
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president ex-officio, executive deputy president, premiers, all ministers and their
deputies, MECs, NCOP chairperson, chairpersons of portfolio committees on
(constitutional affairs, finance and fiscal committee, public service commission),
chairperson of SALGA, director generals of all national departments and provincial
governments, representative of the IEC (IGR audit, Dec 1999). Local government is
represented by the Department of Provincial and Local Government (DPLG) and
SALGA in this forum.
A number of challenges have been indicated as being faced by the NIGF. The IGR report,
Dec 1999 indicates the following challenges and criticisms based on the audit that had
been on the Forum:
• The outcomes of the NIGF meetings were not often clear;
• It lacked executive authority in that it does not make decisions thus becoming a
“talkshop”;
• It mainly served as an information sharing platform;
• National government dominated the proceedings; and
• There were little or no substantive strategic policy discussions;
• There was limited interaction across spheres of government;
• The communication system between the national and provincial government was
poor;
• It was said to be not cost effective;
• Inadequate linkages with other structures such as MINMECS;
• There was inadequate support from staff;
• It became a briefing session for government.
Based on these problems, the recommendation was the disestablishment of the Forum
and a formation of a smaller body that could be used as an instrument to coordinate
government programmes, enhance and add value to cabinet decisions.
Provincial Inter-governmental Forum
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Provincial inter-governmental forums were established to assist provincial departments to
look at issues that cut across their responsibilities. Their composition includes Members
of Executive Committees (MECs), Mayors, chairpersons of district councils, regional
directors, and organised local government (SALGA). The audit on IGRs key findings on
the P-IGF was that they were often too big and their agendas too overloaded for them to
be effective. Thus they have not been very successful in many provinces. An additional
constrained is that the P-IGF is not a decision making body; members discuss and debate
issues. However it was seen as an educational instrument where members assist each
other to understand sensitive issues. They were also seen as good networking entities if
coordinated properly.
The Presidential Coordinating Council
The Presidential Coordinating Council was established in October 1999 as a replacement
of the Premiers Forum, which was disestablished. Its purpose and role is to bring together
all premiers, the state president and the national department of provincial and local
government to address issues of common interest. It was established to develop
provincial policy, prepare and initiate legislation for the province, implement national
legislation within the listed areas of Schedule 4 & 5, and promote the development of
local government, with far-reaching powers and supervision and intervention as in
section 155(7) of the Constitution (IGR audit report, Dec 1999). Local Government is
represented by DPLG in this structure with the objective of carrying up issues that impact
on local government at policy and strategic level.
3.2 Cooperation at Development and Planning level
Cooperative governance at planning level is governed by the same principles that govern
cooperation at political level. These are principles stipulated in the constitution. However,
the concept of cooperative governance at planning level is further broadened and put into
perspective by the policies and strategies that govern planning in different institutions.
18
Most of these strategies and policies regard cooperative governance as central to the
realisation of planning objectives. These policies and strategies include Integrated
Development Planning (IDP) and the Municipal Systems Act. Water resource
management planning strategies and policies include National Water Resource Strategy
(NWRS) and National Water Act.
4. The Current Institutional Arrangements
The constitution and water; The first of the guiding principles states that South
Africa’s new water law shall be “subject to and consistent with the Constitution in all
matters” and “will actively promote the values enshrined in the Bill of Rights”. The need
for the South African water law and for a fundamental change in the approaches to water
management is underpinned by the Constitution, both in relation to the creation of a more
just and equitable society and in relation to the broad need for more appropriate and
sustainable use of our scarce resources, driven by the duty to achieve the right of access
to sufficient water (The White Paper, 1997).
The Right to Equality; one of the rights which is important for the development of new
water policy states that every person is not only equal before the law but also has the
right to equal protection and benefit of the law. The Constitution defines equality to
include “the full and equal enjoyment of all rights and freedoms”, while also stating that
in order to promote the achievement of equality, “legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged by unfair
discrimination” maybe taken.
The Right to Dignity and Life; water gives and sustains life. The failure of apartheid
government to ensure the provision of sanitation and water for basic human needs such as
washing, cooking and drinking, for growing crops and for economic development
impacted significantly on both the right to dignity and the right to life amongst the black
majority. The Constitution provides that every person has a right to life and guarantees
the “inherent dignity” of all persons and the “right to have their dignity respected and
19
protected” and places a duty on the state to make sure that this right is respected, amongst
other things, through access to water.
Environmental Rights; The Bill of Rights also gives all South Africans the right to an
environment that is “not harmful to their health and well being”, as well as the right to
have the environment protected for the benefit of present and future generations. It is
therefore, the duty of the state to make sure that water pollution is prevented, that there is
sufficient water to maintain the ecological integrity of the water resources and that water
conservation and sustainable “justifiable economic and social development” are
promoted. This is different from the old approach that pitted environmental goals against
economic and development ones, and requires instead that they be integrated.
Property Rights; Although the Constitution guarantees certain protections in respect of
property, there are different ways in which a person’s property right can be interfered
with by the state. The Constitution makes distinction between deprivation and
expropriation. The property clause also makes specific provision for corrective action. It
states that no provision of the property rights clause may stop the state from taking
legislative and other measures to achieve land, water and related reform, in order to
redress the results of past racial discrimination.
The Right of Access to Sufficient Water; The property rights question cannot be
understood without looking at the important provision of the Constitution which
guarantees every person the right to access to “sufficient water and food” and to “health
care services”. Government is instructed to “take reasonable legislative and other
measures within its available resources to achieve the progressive realization” of these
rights.
Cooperative Government; the management of water is, constitutionally, a national
function and the role of the public trustee is ultimately a duty imposed on national
government. But since water also address matters such as the environment and pollution
20
control, which are concurrent national and provincial functions, the national government
will address these matters in the spirit of cooperative governance.
5. Formal policies dealing with water and related resources;
The National Water Act (NWA), 1998; The purpose of the NWA is to ensure that the
nation’s water resources are protected, used, developed, conserved, managed and
controlled in ways which takes into account amongst other factors;
• meeting the basic human needs of present and future generations,
• promoting equitable access to water,
• redressing the results of past racial and gender discrimination,
• promoting the efficient sustainable and beneficial use of water in the public
interest,
• facilitating social and economic development,
• providing for growing demand for 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,
• managing floods and droughts;
and for achieving this purpose, to establish suitable institutions and to ensure that they
have appropriate community, racial and gender representation.
The National Environmental Management Act (NEMA); This Act was promulgated
to implement the constitutional right to a healthy and protected environment
(Constitution s24), and therefore to give practical effect to the constitutional principle of
sustainable development. Its objectives are summarized in the preamble, and include the
following: integration of social, economic and environmental factors in decision-making;
integration of legislative input from all spheres of government; integration of good
environmental management into all development activities. The principles of the NEMA
are contained in section 2 (NEMA Chap 1), serving as the framework for decision21
making by all organs of state where the decisions significantly affect the environment.
The principles further provide a basis for the interpretation and administration of all laws
that affect environmental protection and management (s2(1)).
Land use and development; The Development Facilitation Act, 1995; Section 3(1) of
the DFA states that policy; administrative practice and laws should give content to the
fundamental rights of the Constitution. The effect is that environmental health should be
pursued in the implementation of land development planning and decision-making.
Physical Planning Acts (PPA) 1967; and 1991 ; The 1967 Act provides for the
establishment of statutory control measures to promote coordinated environmental
planning and the utilization of resources (PPA, 1967, the Preamble, while the 1991 Act
goes further by providing for the promotion and co-ordination of physical planning on a
national and regional basis (PPA,1991 s2(2)).
Agricultural Fisheries and Fishery Resources Agricultural Resources; Natural
agricultural resources are defined in the Conservation of Agricultural Resources Act
(CARA), 1983 as soil, water courses (where a water course is a natural flow path in
which run-off water is concentrated and along which it is carried away) and vegetation,
excluding weeds and invader plants (CARA s1). The Conservation of Agricultural
Resources Act is aimed at conserving natural resources by maintenance of the production
potential of land, erosion prevention, protection of water resources and natural
vegetation, and combating of declared invader plants (CARA s3).
Marine Resources; The Sea-Shore Act (SSA) of 1935 provides for the protection of the
sea and sea-shore through regulations for the control of the removal of material
therefrom; and for the control of activities which pose health risks (SSA s10(1)(c) and
(d). Also see the regulations published in GN 1720 GG5542 of 2 September 1955; GN
R2513 GG7318 of 5 December 1980. Section 38 of the Sea Fisheries Act (SFA), 12 of
1988 also provides for controlled removal of materials from the sea and shore).
22
The Marine Living Resources Act of 1998 (MLRA) is aimed at the conservation of the
marine ecosystem, and contains the following principles and objectives: to achieve
optimum utilization and ecologically sustainable development of marine living resources;
to conserve marine living resources for present and future generations; to utilize marine
living resources for economic growth, human resource development and sound ecological
balancing consistent with the development objectives of national government; to protect
marine biodiversity (MLRA, s2. Certain provisions of the Sea Fisheries Act (see note 34)
were retained when this Act came into effect).
Forests The National Forests Act (NFA), 1998 is aimed at the promotion of sustainable
management and development of forests for the benefit of all; and the promotion of the
sustainable use of forests for environmental, economic, educational, recreational, cultural,
health and spiritual purposes (NFA, s1). A policy for the management of forests must be
developed and implemented by the Minister (NFA, s46). He may also develop criteria
for measuring forest management against the principles of the Act (NFA, s4). These
management tools are still in formative stages.
Mineral Resources; The Minerals Act (MA), 1991 regulates the optimal exploitation,
processing and utilization of minerals and the orderly utilization and rehabilitation of the
surface of land after mining operations in accordance with an environmental management
programme, which must be approved by each department charged with the administration
of any law relating to any matter affecting the environment. Regulations under the
Minerals Act have been issued to address, inter alia, environmental matters (GN
R992/2741/1, as amended). A White Paper on a Minerals and Mining Policy was
published in 1998 (DME A Minerals and Mining Policy for South Africa (White Paper)
1998), in which the environmental impact of mining activities is addressed.
The Mineral and Petroleum Resources Development Act, 2002 (MPRDA), was recently
published (GG 23922 of 10 October 2002). The objectives of this Act include the giving
of effect to the state’s sovereignty and custodianship over all mineral resources, and also
the constitutional principle to ensure that the nation’s mineral resources are developed
23
and managed in an orderly and ecologically sustainable manner, while optimizing
justifiable social and economic development (MPRDA s2(a), (b) and (h)). This Act
specifically accepts the application of the principles contained in section 2 of NEMA,
which will apply to all prospecting and mining operations, and will serve as guidelines
for the implementation, interpretation and administration of all environmental
requirements under the proposed Act (MPRDA s37). It states further that all mining
operations must be conducted in accordance with the generally accepted principles of
sustainable development by integrating social, economic and environmental factors into
the planning and implementation of projects, to ensure that the exploitation of mineral
resources serves present and future generations (MPRDA s37(2)).
Heritage Resources The general principles for heritage resources (National Heritage
Resources Act 25 of 1999 (NHRA) s2) management include an obligation on the State
(by participative management) to carefully manage heritage resources to ensure their
survival in the interests of all South Africans, and to promote, by policy, administrative
practice and legislation, the integration of heritage resources conservation in urban and
rural planning and social and economic development (NHRA s5).
No specific provision is made in the National Heritage Resources Act, 1999 for the
integration of the management of cultural resources with management of natural
resources. Emphasis is placed on the conservation (protection, maintenance, preservation
and sustainable use) of heritage resources in spite of socio-economic development.
Reference is, however, made to the principle that laws, procedures and administrative
practices relating to heritage resources management must give content to the
constitutional fundamental rights (NHRA s5(3)(c)).
Ad hoc conservation laws Various laws exist with ad hoc conservation purposes, such as
the Game Theft Act 105 of 1991, Lake Areas Development Act 39 of 1975, Mountain
Catchment Areas Act 63 of 1970, National Parks Act 57 of 1976, Sea Birds and Seals
Protection Act 46 of 1973, Sea-Shore Act 21 of 1935, Antarctic Treaties Act 60 of 1996,
Maritime Zones Act 15 of 1994, World Heritage Convention Act 49 of 1999,
24
Atmospheric Pollution Prevention Act 45 of 1965, Hazardous Substances Act 15 of 1973,
Dumping at Sea Control Act 73 of 1980, Marine Pollution Acts 6 of 1981, 2 of 1986 and
64 of 1987; Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36
of 1947, and the provincial environmental and resources laws
Indigenous customary laws; In the past, the freedom to use common resources was
subject to the local leader’s power to regulate access, if and when this became necessary
in the interests of the community as a whole. To preserve a diminishing water supply, for
example, taking water for certain usage could be prohibited indefinitely or for a specified
period. Customary law gave traditional authorities all the powers they needed to protect
the environment, and there is ample evidence to show that they reacted when resources
were in danger of running out (Thompson, 2006).
The creation of the new constitutional state in South Africa posed a variety of legal and
political problems for the traditional leaders, since their undifferentiated powers of
governance under customary law might be in conflict with many aspects of the new
order. The Constitution of the Republic of South Africa Act, 1996 confirmed the status
quo of traditional leaders with the qualification that the powers of the leaders are
subjected to the fundamental rights and legislative control. These broad terms left all the
details of compliance with the principles of constitutional government to be worked out
by the courts and legislation. This process is far from complete. Within IWRM,
traditional leadership institutions can play a very critical role in the development and
implementation of IWRM strategies. The following can be identified as possible roles:
• Traditional leadership could be used by CMAs as a structure to ensure participation
within a WMA, thus facilitating community involvement in WRM issues.
• The structure could be used as a source of empowerment for previously
disadvantaged communities.
• Traditional leadership can be used as a platform to implement the IWRM strategies
and most importantly implement and create an understanding of the CMSs.
• The leadership could also be used to identify community needs for IDP within a
WMA.
25
6. The Organizational Framework for Water Management
The Minister of Water Affairs and Forestry; as the holder of the public trust and is the
custodian of water resources who carries out public trust obligations in a way which (as
cited in Thompson, 2006);
• Guarantees access to sufficient water for basic domestic needs
• Makes sure that the requirements of the environment are met
• Takes into account the interconnected nature of the water cycle, a process on
which the sustainability and renewability of the resource depend
• Makes provision for the transfer of water between catchment
• Respects South Africa’s obligations to its neighbours
• Fulfils its commitment as custodian of the nation’s water
The Minister may in writing delegate a power vested in him or her to; An official of
DWAF by name, The holder of an office in DWAF, A CMA, A WUA, A body
responsible for international water management, A person who fulfils the functions of a
water management institution, An advisory committee or to a water board. The
delegation may be subject to conditions and limitations as specified. The Minister may
not delegate the power to; Make a regulation, Authorize a water management institution
to expropriate property, Appoint a member of a governing board of a CMA, or Appoint a
member of the Water tribunal.
26
The National Water Tribunal; The Water Tribunal was established when the Act was
promulgated in October 1998. It replaces the Water Court, which ceased to exist when
the 1956 Water Act, in terms of which it functioned, was repealed.
It is not a water management institution in terms of the Act, but an independent body
with a mandate to hear and adjudicate appeals on a wide range of water-related issues,
mainly against administrative decisions made by responsible authorities and water
management institutions. It will also adjudicate claims for compensation where a user
considers that the economic viability of her or his water-use activity has been severely
prejudiced by a refusal to grant a licence, or a reduction in water use when a licence is
granted or reviewed. However, some alleged breaches of administrative procedures will
be adjudicated by the courts in terms of the Promotion of Administrative Justice Act. The
Tribunal has jurisdiction everywhere in the country and it may hold hearings in the areas
where the cause of action arose. Its operations are funded from the National Treasury.
DWAF
Water
WSP
Local
Governm
Traditiona
l Authority
Municipal
Utility
Province
WUA
CMA
Traditiona
l Authority
Internatio
nal Body
RO
CM
WS
Catchme
nt Forum
Accountab
Oversight
Accountab
Services
Contract
Cooperati
Contract Accountab
Cooperation
Cooperati
Cooperation &
Representation
Cooperati
Agreemen
Accountab
Representat
Consult
Representat
ion Consultati
Cooperati
Water Resources
Management
Water Services
NWR
Minis
ter
Water
Research
Accountabili
Consutltation
Water
Tribunal
27
Institutions for Infrastructure Development
The Department has developed and owns, operates and maintains a number of water
resources schemes comprising dams and related infrastructure such as pumping stations,
pipelines, tunnels and canals. The schemes vary greatly in size. The infrastructure has an
estimated replacement value of some R38 000 million and occupies some 2 500
departmental staff in its management (as in 2001).
The Department has developed and maintained considerable specialist design and
construction capacity, which is of strategic importance given the high level of specialist
expertise required for such activities and the limited alternative sources. The
responsibility for operating and maintaining schemes that are of local importance, or
mainly serve one user sector, such as agriculture or a single municipality, are being
transferred to the appropriate water user associations and water services institutions.
Subject to the agreement of National Treasury, the schemes may eventually be
transferred into the ownership of the operating institution.
This will, however, not be the case for schemes that are of wider importance because they
transfer water across national boundaries or between water management areas, serve
multiple user sectors or large geographic areas, comprise several interconnected
catchments, or serve a strategic purpose, such as the generation of electricity for the
national grid. Examples are large systems such as the Vaal, Umgeni, Amatole and
Riviersonderend-Berg River systems, major water transfer schemes such as Thukela-Vaal
and Orange-Fish, and major dams such as Gariep and Van der Kloof. These schemes are
regarded as national water resources infrastructure.
Currently, the South African national water resources infrastructure agency limited Bill is
undergoing approval processes. The Bill provides:
For the incorporation and establishment of The South African National Water Resources
lnfrastructure Agency as a juristic person wholly owned by the State to be tasked with the
responsibility to administer, fund, finance, develop, alter, maintain, rehabilitate,
28
refurbish, operate, manage and provide advisory services in respect of national water
resources infrastructure; to provide for the disestablishment of the Trans-Caledon Tunnel
Authority; and to provide for matters connected therewith.
Institutions for International Water Management
Internationally shared river basins comprise about 60 per cent of South Africa’s land
surface. The Act, together with the Revised Protocol on Shared Watercourses in the
Southern African Development Community, commits South Africa to sharing water in
international river basins with neighbouring countries in an equitable and reasonable
manner. Accordingly, the Minister may, in consultation with the Cabinet, establish
institutions to implement international agreements in respect of the development and
management of shared water resources and to pursue regional co-operation in water
matters.
Three existing bodies, the Trans-Caledon Tunnel Authority (RSA portion of the Lesotho
Highlands Water Project), the Komati Basin Water Authority (RSA-Swaziland), and the
Vioolsdrift Noordoewer Joint Irrigation Authority (RSA-Namibia), are regarded as
international water management bodies in terms of the Act. Although not established in
terms of the Act, the following international structures have been established to further
the development and management of the four international river basins that South Africa
shares with neighbouring countries:
– Lesotho Highlands Water Commission (LHWC) (Lesotho, RSA).
– Swaziland/RSA Joint Water Commission.
These were originally project-related and focused on the Lesotho Highlands Water
Project and the Komati River Development Project respectively, but both now deal
with other matters of common interest.
– Orange/Senqu River Basin Commission (Botswana, Lesotho, Namibia and RSA).
– Limpopo Basin Permanent Technical Committee (LBPTC) (Botswana, Mozambique,
RSA and Zimbabwe).
29
The former is a river basin commission in terms of the Revised Protocol on Shared
Watercourses in the Southern African Development Community. The Agreement to
establish the Limpopo Watercourse Commission was signed in Maputo in November
2003. This will replace the LBPTC.
– Botswana/RSA Joint Permanent Technical Water Committee.
– Mozambique/RSA Joint Water Commission.
– Permanent Water Commission (PWC) (Namibia, RSA).
– Swaziland/Mozambique/RSA Tripartite Permanent Technical Committee (TPTC).
These deal with matters of common interest.
The National Water Research Commission (WRC). Since 1971, the responsibility for
leading water-related R&D on behalf of the government and water sector of South Africa
has been vested in the Water Research Commission (WRC). Funded in terms of the
Water Research Act of 1971 by water users through a levy on water usage, the WRC is
an independent organization that reports to Parliament through the Minister of Water
Affairs and Forestry. The WRC does not itself conduct research, but has traditionally
assessed and prioritized research needs in close consultation with stakeholders,
contracted research to meet these needs and disseminated resulting knowledge with a
view to solving water-related problems. Inherent in the WRC’s funding of research under
contract has been the development of capacity and skills needed to continuously
empower the water sector to support national growth and development objectives.
The Department of Water Affairs and Forestry; prior to 1998, the management of
water resources and the supply of water and sanitation were the responsibilities of the
National Department of Water Affairs and Forestry (DWAF) which has regional offices
in every province in the country. Although the regional DWAF offices excluded the
servicing of the old homeland areas (namely; Ceski, Transkei and Venda), they had to be
fully amalgamated post 1994. DWAF has undergone a number of serious reforms as a
consequence of the government’s new structures. At that stage, the DWAF collective
grew in numbers and reached a critical mass of 36, 000 employees nationally.
30
At present the DWAF is responsible for administering all aspects of the Act on behalf of
the Minister. The Department is responsible for the development and implementation of
strategies and internal policies, plans and procedures, and regulatory instruments relating
to the Act. It is also responsible for planning, developing, operating and maintaining
state-owned water resources management infrastructure, and for overseeing the activities
of all water management institutions. CMAs will be supported by lower tier institutions
for furthering public consultations. Those are Catchment Advisory Committees, WUA,
CMF, etc. Other relevant institutions include the Water Tribunal for users legal recourse,
the Water research Commission under the Water Research Act of 1974 and the Ministers’
National Advisory Council set under the 1956 Act.
The Department’s role will, however, progressively change as regional and local water
management institutions are established and the responsibility and authority for water
resources management are delegated and assigned to them. The Department’s eventual
role will mainly be to provide the national policy and regulatory framework within which
other institutions will directly manage water resources, and to maintain general oversight
of the activities and performance of these institutions. The Department will continue to
manage South Africa’s international relationships and activities in water matters, although
some aspects of this may eventually also be handled through institutions established with
neighbouring countries.
In terms of the NWA, the Minister for DWAF may establish Water Management
Institutions (WMIs) to support the mandate of managing water resources. The Act
provides for a phased establishment of WMIs to undertake the WRM functions that are
currently performed by DWAF. Operational policies define that there will be 19
Catchment Management Agencies (CMA), one for each Water Management Area. CMAs
will represent the second tier of governance accountable to the Minister of DWAF.
CMAs operate on hydrological boundaries and are governed by a Governing Board made
up of the users in each locality. The Department’s organisational structure will also
continue to change in accordance with its new role and functions under the Act, and to
31
facilitate the development of well-defined relationships with other water-related
institutions. The following principles and approaches are guiding the transformation
process:
– The state will progressively adjust its role in water resources management to
concentrate on policy and strategy issues, overall regulatory oversight, and
institutional support, co-ordination and auditing. Its Regional Offices are currently
responsible for direct service provision and their transformation will be particularly
profound.
– The state may progressively withdraw from direct involvement in the development,
financing, operation and maintenance of water resources infrastructure as this is at
odds with the regulatory role. Alternatively, if the Department retains the development
function, this role will be clearly separated from its policy and regulatory functions.
The question of which institution(s) should be responsible for infrastructure
development and operation is still under discussion, and is discussed below.
– The state will transfer the responsibility for operating and maintaining some
infrastructure to water management institutions and water services institutions, but
catchment management agencies may take on these responsibilities only if their
regulatory role is not prejudiced.
– The establishment, capacitation and empowerment of catchment management agencies
for all water management areas should proceed as rapidly as possible. The transitional
period during which an agency and the relevant Regional Office are jointly
responsible for water resources management must be carefully managed to reduce
uncertainties around the division of functional responsibilities and accountability.
With the National Water Services Act, promulgated in 1997 the role of local government
structures as the responsible authorities for water supply and sanitation provisions was
redefined. The process of staff and water supply infrastructure transfers is still underway.
The DWAF still retains the role of support, monitoring and evaluation over local
government for water service delivery purposes.
32
Water Management Areas (from NWRS) After a countrywide process of public
consultation, 19 water management areas covering the entire country were established in
October 1999 by Government Notice No. 1160. The number of water management areas
and the location of their boundaries were determined by considering factors such as –
– the institutional efficiency of creating a large number of catchment management
agencies, each managing a relatively small area, compared with a small number of
agencies, each managing a larger area;
– the potential for a catchment management agency to become financially self-sufficient
from water use charges;
– the location of centres of economic activity;
– social development patterns;
– the location of centres of water-related expertise from which the agency may source
assistance; and
– the distribution of water resources infrastructure.
It is important to note that the boundaries, firstly, do not coincide with the administrative
boundaries that define the areas of jurisdiction of provincial and local government
authorities. Secondly, the boundaries are not irrevocably fixed for all time, and can be
changed if necessary as management experience and understanding of hydrologic
systems grows, to achieve greater efficiency or effectiveness. Operational experience and
interactions with water users and other stakeholders since the water management area
boundaries were established in 1999 have indicated that minor amendments to the
Gazetted boundaries will have benefits in terms of water resources management in
general, and for billing for water use charges in particular. The proposed amendments
address cases where, for instance, the area covered by a water user association, a
groundwater aquifer or even an individual farm falls into two water management areas
and where, without the amendments, charges would eventually be payable to two
catchment management agencies.
33
Catchment Management Agencies (CMAs)
CMA are statutory bodies that will be established by Government Notice. They will have
jurisdiction in defined water management areas, and will manage water resources and coordinate
the water-related activities of water users and other water management
institutions within their areas of jurisdiction. An agency begins to be functional once a
governing board has been appointed by the Minister (see also Advisory Committees
below) and is then responsible for the initial functions described in section 80 of the Act,
as well as any other functions delegated or assigned to it. The governing board must
represent all relevant interests in the water management area and must have appropriate
community, racial and gender representation.
The initial functions of the agencies include the important responsibility of developing a
catchment management strategy (CMS). This strategy, which may not be in conflict with
the National Water Resources Strategy (NWRS) and must give effect to its provisions
and requirements, provides the framework for managing the water resources of the area.
In particular, it must determine the principles according to which available water will be
allocated among competing user groups.
The delegation and assignment of duties and responsibilities will include the financial
and administrative responsibilities of setting and collecting water use charges, the
technical water resources management functions based on the issues identified in the
catchment management strategy, and the responsible authority functions relating to the
authorisation of water use. The timing of the delegations and assignments will depend on
the capacity of the agency to undertake the functions.
An agency may, with the Minister’s written consent, delegate powers to another statutory
body, but it may not delegate the power to delegate, and the power to authorise water use
may be delegated only to a committee established by the governing board on which a
minimum of three board members serve. Agencies may contract public water
management institutions or private sector organisations to carry out specified activities,
34
but preference must be given to local organisations, taking into account their capacity and
representivity, and efficiency, quality, time and cost considerations.
In areas where agencies have not yet been established, or where they are not yet fully
functional, all powers and duties vest in the Minister, and the Department will undertake
the agencies’ functions on the Minister’s behalf (section 72).
Public involvement in the CMA establishment process is essential, because it contributes
to establishing the legitimacy of the institution, assists the advisory committee in making
nominations to the Minister for the governing board by identifying representative
stakeholder groups, and builds a foundation for the agency to promote public
involvement in water resource management. Accordingly, the extent to which
stakeholders have been involved in the development of a proposal to establish an agency
is one of the most important criteria against which the Minister will judge the merit of the
proposal.
Ministerial approval of the proposal will pave the way for the appointment of the
governing board and for the board to appoint the necessary staffing structure.
Establishment and full empowerment of catchment management agencies in all water
management areas will take some time to achieve. In the meantime the Department will
manage the areas on the Minister’s behalf.
The Department will provide support for the agencies, initially during their development,
and subsequently when they are fully established. During the transition period between
the establishment of the agencies and their empowerment as responsible authorities, the
Department and the agencies will work closely together. The respective roles will change
as powers and duties are delegated and assigned to the agencies and it will be essential
for roles and functions to be clearly defined at each stage of the transition. Eventually the
Department will be responsible only for ongoing oversight and general support of the
agencies (NWRS, 2004).
35
Other water management institutions
In extending the objectives of WRM, the NWA provides for the establishment of other
more localised WMIs whose role is to assist the CMA in managing water resources.
Depending on their capacity, these institutions may assist the CMA in a number of
functions, e.g. the use of Catchment Management Forums (CMF) to promote stakeholder
participation and the use of Catchment Management Committees (CMC) to solve local
water resource issues within a WMA. Water User Associations (WUA) are also defined
in the Act as water management institutions which are in effect co-operative associations
of individual water users who wish to undertake water-related activities at a local level
for their mutual benefit.
References:
Department of Constitutional Development (1996). The Constitution of the Republic of
South Africa. Pretoria.
DWAF,1996. The White paper on a national water policy for South Africa.
Department of Provincial and Local Government (2003). A Guideline Document on
Provincial – Local Government Intergovernmental Relations. Pretoria.
DWAF, National Water Resources Strategy. 1st edition, September 2004.
MacKay H.M. 2003. Water policies and practices. In: D Reed and M de Wit (eds.)
Towards a Just South Africa: The Political Economy of Natural Resource Wealth. WWF
Macroeconomics Programme, Washington. 49-83.
Thompson, Hubert, 2006. Water law: a practical approach to resource management and
the provision of services. Juta and Co Ltd.
Water Research Commission, 2004. De Coning, c and T Sherwill, 2004. An Assessment
of the Water Policy Process in South Africa (1994 to 2003). Water research Commission
Report TT232/04.
36
Water Research Commission, 2006. Mazibuko, Gugu and Guy Pegram. Evaluation of the
Opportunities for Cooperative Governance between Catchment Management Agencies
and Local Government
All public documents can be accessed from the official South African Government
site; http://www.info.gov.za/