Policies, Legislation and Organizations Related to Water in South Africa, with Special Reference to the Olifants River Basin H. Thompson C.M.Stimie E. Richters and S. Perret WORKING PAPER 18 SM Olifants river basin Olifants river basin Steelpoort river basin REPUBLIC OF SOUTH AFRICA MPUMALANGA GAUTENG NORTH-WEST NOTHERN PROVINCE M O ZA M BI Q U E SWAZILAND Steelpoort river basin Study Area Republic of South Africa South Africa Working Paper No. 7 i Working Paper 18 Author H. Thompson Coauthors C. M. Stimie, E. Richters and S. Perret South Africa Working Paper No. 7 Policies, Legislation and Organizations Related to Water in South Africa, with Special Reference to the Olifants River Basin ii IWMI receives its principal funding from 58 governments, private foundations, and international and regional organizations known as the Consultative Group on International Agricultural Research (CGIAR). Support is also given by the Governments of Pakistan, South Africa and Sri Lanka. The research reported in this working paper was carried out as part of the Research Program on Institutional Support Systems for Sustainable Local Management of Irrigation in Water-Short Basins. IWMI gratefully acknowledges the support provided by the German Government’s Bundesministerium für Wirtschaftliche Zusammenarbeit und Entwicklung (BMZ) and the Deutsche Gesellschaft fürTechnische Zusammenarbeit (GTZ) GmbH for this study. The authors: H. Thompson is attached to Thompson & Thompson, C. M. Stimie and E. Richters to ARC-ILI and S. Perret to the University of Pretoria/CIRAD. Thompson, H.; C. M. Stimie; E. Richters; S. and Perret. 2001. Policies, legislation and organizations related to water in South Africa, with special reference to the Olifants river basin. Working Paper 18 (South Africa Working Paper No. 7). Colombo, Sri Lanka: International Water Management Institute. / water resources management / river basins / water use / organizations / institutions / mapping / government / political aspects / ethnology / social status / water policy / water law / land tenure / water supply /sanitation / water users / land use / conflict / private sector / nongovernmental organizations / local government / water user associations / catchment areas / monitoring / South Africa / Olifants river basin / Steelpoort river basin / ISBN 92-9090-441-0 Copyright © 2001, by IWMI. All rights reserved. Please direct inquiries and comments to: iwmi-research-news@cgiar.org iii Dedication Working Papers 17 and 18 are dedicated to the memory of Dr. Jeffrey Brewer, who passed away in April 2001. Jeff provided assistance in technical editing and review of these papers, which is gratefully acknowledged in the text. This work, done in January 2001, was his last professional job for IWMI, carried out as a consultant. He had been a staff member at IWMI from December 1991 to June 1999. His former colleagues and friends were shocked and saddened by his sudden passing. Jeff was a good colleague and good friend who will be missed. iv v Contents Figures ............................................................................................................................ vii Acronyms ....................................................................................................................... viii Foreword ........................................................................................................................ ix Executive Summary ........................................................................................................ xi CHAPTER 1 Introduction ................................................................................................... 1 1.1 Background ............................................................................................. 1 1.2 Scope of This Paper ................................................................................ 3 1.3 The Concept of HIM ............................................................................... 3 1.3.1 Water management ........................................................................ 3 1.3.2 Institutions ..................................................................................... 4 1.4 Methodology ........................................................................................... 5 CHAPTER 2 Institutional Framework to 1994 .................................................................... 7 2.1 Introduction ............................................................................................. 7 2.2 Policy of Apartheid ................................................................................. 7 2.3 How Government Was Structured and Functioning ................................. 8 2.3.1 Constitutional matters .................................................................... 8 2.3.2 Government ................................................................................... 9 2.3.3 Legislative sovereignty of parliament ............................................ 9 2.3.4 Creation of national States and self-governing territories .............. 10 2.4 Water Policies and Legislation ................................................................ 11 2.4.1 The foundation of the water law ................................................... 11 2.4.2 The Irrigation and Conservation of Water Act of 1912 ................. 12 2.4.3 Control over the water resources in terms of the Water Act of 1956 ................................................................................ 12 2.4.4 Government water control areas in the Olifants river basin .......... 14 2.4.5 Water Court orders given in the Olifants river basin ..................... 14 2.4.6 The Water Act of 1956 and the national States and self-governing territories............................................................. 16 2.5 Land Tenure in the National States and Self-Governing Territories ......... 16 2.6 Development Related to the National States and Self-Governing Territories ..................................................................... 17 2.7 Organizations Involved in Water Management ........................................ 18 2.7.1 Republic of South Africa ............................................................... 18 2.7.2 Lebowa self-governing territory .................................................... 20 2.7.3 KwaNdebele self-governing territory ............................................ 20 2.7.4 Gazankulu self-governing territory ................................................ 21 2.7.5 South African Development Trust Corporation ............................. 21 2.7.6 Permanent water commissions ....................................................... 21 vi CHAPTER 3 Constitutional Requirements .......................................................................... 23 3.1 Political Changes ..................................................................................... 23 3.2 The Bill of Rights ................................................................................... 23 3.3 How Government Is Structured and Functioning ..................................... 24 3.3.1 A three-sphere government............................................................ 24 3.3.2 Functional areas of the different spheres of government ............... 24 3.3.3 Cooperative government and intergovernmental relationships ....... 26 CHAPTER 4 Water Resources Management ....................................................................... 27 4.1 Process to Develop Water Resources Management Policy ...................... 27 4.2 White Paper on a National Water Policy for South Africa ...................... 28 4.3 Legal Framework to Implement Water Resources Management Policy ... 30 4.3.1 Creating the necessary organizational capacity ............................. 30 4.3.2 Development of strategies to implement theNational Water Policy 35 4.3.3 Resources-directed measures ......................................................... 36 4.3.4 Source-directed measures .............................................................. 37 4.3.5 Control of activities that might affect water resources .................. 37 4.3.6 Monitoring and assessment ........................................................... 40 CHAPTER 5 Provision of Water Services ........................................................................... 41 5.1 Background ............................................................................................. 41 5.2 Provision of Water Services to Support Life and Personal Hygiene ........ 41 5.2.1 White Paper on water supply and sanitation ................................. 42 5.2.2 Legal framework for provision of water services to support life and personal hygiene............................................................ 45 5.3 Provision of Water Services for Agricultural Purposes ............................ 47 5.4 Provision of Water Services to Improve Nutritional Status ..................... 48 CHAPTER 6 Organizations in Water Management ............................................................. 49 6.1 Types of Organizations and Relationships among Them ......................... 49 6.2 Water Users ............................................................................................. 51 6.3 The Department of Water Affairs and Forestry (DWAF) ......................... 52 6.4 Regulators Involved in Water Management ............................................. 54 6.4.1 Regulators regulating impacts on water resources ......................... 54 6.4.2 Regulators regulating activities generating waste .......................... 54 6.4.3 Regulators regulating land use ...................................................... 57 6.4.4 Regulators creating the necessary framework for the provision of water services ........................................................................ 60 6.5 Water-Service Providers .......................................................................... 61 6.6 Facilitators .............................................................................................. 72 6.7 Conflict Resolvers ................................................................................... 74 6.8 Other Interested Groups .......................................................................... 75 Appendix 1. Matters over which a Self-Governing Territory Had Governing Status ......... 76 Appendix 2. Provisions of the Repealed Water Act of 1956 .............................................. 77 Literature Cited ................................................................................................................... 80 vii Figures Figure 1.1. Locality map of the Olifants and Steelpoort basins ......................................... 2 Figure 2.1. Areas declared as government water-control areas .......................................... 15 Figure 6.1. Interactions of organizations involved in water management ........................... 50 Figure 6.2. Services areas of water boards ......................................................................... 64 Figure 6.3. Area of jurisdiction of the new local government structures ........................... 65 Figure 6.4. Area of jurisdiction of the existing district and rural councils ......................... 68 Figure 6.5. Area of jurisdiction of the transitional local councils ...................................... 69 Figure 6.6. Area of operation of the different WUAs (irrigation boards) ........................... 71 viii Acronyms CBO Community-based organization CMA Catchment Management Agency DWAF Department of Water Affairs and Forestry EMPR Department of Agriculture Environmental Management Programme Report HIM Hydro-Institutional Mapping IWMI International Water Management Institute NPDAE Northern Province Department of Agriculture and Environment NWA National Water Act, 1998 (Act No. 36 of 1998) TLC Transitional local council TRC Transitional rural council TrepC Transitional representative council WSA Water Service Act, 1997 (Act No. 108 of 1997) ix Foreword The International Water Management Institute (IWMI) commissioned this introductory study on hydro-institutional mapping (HIM) of the Olifants river basin. HIM refers to the spatial and functional descriptions of all institutions using water in a basin in South Africa. It also includes the relationship between users created by shared water use. The products of the study are as follows: ? A publication of HIM in a subbasin of the Olifants river in the Steelpoort river basin using a few case studies representing the different types of users (Working Paper 17). ? A description of the governmental institutions dealing with water before and after 1994. This background on previous and current institutions and policies at the different government levels is crucial to explain the situations one finds on the ground. Although this study centers on the Olifants river basin, the description is applicable to the rest of the country in broad terms (Working Paper 18). The authors worked as a team from the outset but were responsible for particular chapters. HIM Publication (Working Paper 17) Chapter 1. C. M. Stimie, coordinator (ARC-ILI) Dr. S. Perret (University of Pretoria/CIRAD) Chapter 2. E. Richters (ARC-ILI) C. M. Stimie Chapter 3. Dr. S. Perret Chapter 4. E. Richters Chapter 5. C. M. Stimie Institutions and Policies (Working Paper 18) All chapters: H. Thompson (of Thompson & Thompson) with inputs from all the other authors. The authors would like to express their gratitude to IWMI for making this study possible and for the direction provided throughout the study. They particularly acknowledge the substantive comments from Drs. Doug Merrey and Tushaar Shah, and the editorial assistance from Drs. Jeff Brewer and Doug Merrey. We also trust that this study and similar studies will contribute to the efficient and fair management of the precious water resources in South Africa. x xi EXECUTIVE SUMMARY The International Water Management Institute commissioned a project to set out the hydro- institutional mapping (HIM) for the Olifants river basin in Mpumalanga and the Northern Provinces in the Republic of South Africa. The project forms part of a collaborative research program to understand the institutional support systems for sustainable local management of water use in this basin. The study is reported in two Working Papers. Working Paper 17 reports the findings of the HIM exercise. This paper contains the policies, legislation and organizations relevant for understanding of the HIM for the Olifants river basin. It also includes the historical development of the institutional framework in the basin, as this history has left a profound imprint on the South African society at large and is still dictating, in many cases, the interactions between the different organizations. Water management consists of water resources management and the provision of water services, which two functions, although distinguishable, cannot be separated in practice. The objective of water resources management is to ensure that water resources are protected, used, developed, conserved, managed and controlled to achieve optimum and environmentally sustainable social and economic benefits. Water services, on the other hand, are the services necessary to enable water users to use water resources on a sustainable basis. Various organizations provide water resources management and water services. These include regulators, water-service providers, facilitators, conflict resolvers, water users and other interested groups. The framework in which these organizations have to operate is very complex. The framework is also very dynamic due to, among other things, the political, social and economic development in South Africa during the last decade of the twentieth century. Various processes are under way to restructure and transform the existing organizations and to establish new ones. While organizations have emerged to play a role in water management, the roles of certain other organizations must still be resolved. The government is now constituted into national, provincial and local spheres of government. The constitution states that these spheres are distinct, interdependent, and interrelated, and sets out the functional areas for each. Water resources management is an exclusively national government function. Managing waste-generating activities and the waste generated and regulating land uses that might affect water resources could, just as the provision of water services, be either an exclusively national, concurrently national and provincial, exclusively provincial or a local government function, depending on which sector and activities are involved. The policies and activities of one sphere of government may impact on the responsibilities and functions of another. Therefore, all three spheres of government and all organs within each sphere must cooperate and consult with each other, respect the responsibilities of the others, and exercise powers and perform functions in such a way as not to encroach on the integrity of another. Furthermore, the different spheres and organs may only exercise those powers and perform those functions conferred on them. The establishment of a catchment management agency for the Olifants river basin as well as the development of a catchment management strategy will assist greatly in achieving these ideals relating to water resources management and the provision of water services to support life and hygiene in the Olifants river basin. The implementation of the White Paper on local government and the development of water-service plans by water-service authorities, in terms of the Water Services Act, of 1997 will likewise assist in achieving these ideals. 1 CHAPTER 1 Introduction 1.1 Background The International Water Management Institute (IWMI) commissioned a project in the Republic of South Africa to set out HIM for the Olifants river basin in Mpumalanga and the Northern Provinces. This project forms part of IWMI�s collaborative research program to understand the institutional support systems for sustainable local management of water use in this basin. The HIM for a river basin includes among others: • An analytical description of the policies that influence hydro-institutional arrangements and interactions. • An analytical description of water-related laws, in the case of the Republic of South Africa, the National Water Act, 1998 (Act No. 36 of 1998) (NWA) and the Water Services Act, 1997 (Act No. 108 of 1997) (WSA). • Identification and mapping of the entire complex hydro-institutional relationship. • An analysis of the various organizations in the public and private sectors engaged in hydro-management. The team responsible for the project realized that it was not possible to execute the project within the time frame allocated and with the means available. After discussions with IWMI, it was decided to concentrate on one of the subbasins of the Olifants river basin, namely the Steelpoort river. The land use and water utilization and some of the water management problems experienced in the Steelpoort river basin are similar to those of the rest of the Olifants river basin. Various case studies were then done in the Steelpoort river basin to assist with setting out the HIM. Figure 1.1 shows the locality of the Olifants river and Steelpoort river basins. After the first draft of the report for the project was submitted to IWMI, it was decided to separate the output of the project into two papers, namely: • This paper containing the policies, legislation and organizations relevant to setting out the HIM for the Olifants river basin. • A paper based on case studies done in the Steelpoort river basin containing: - a general methodology and framework for setting out the HIM for a river basin; - the HIM for some of the areas in the Steelpoort river basin where many of the inhabitants are poor and with limited, insufficient or no access to resources, 2 Figure 1.1. Locality map of the Olifants river and Steelpoort river basins. 3 information, services and enough water of good quality to support life and personal hygiene; and - the results of the case studies done in the Steelpoort river basin. 1.2 Scope of This Paper This paper contains the policies, legislation and organizations relevant to setting out the HIM for the Olifants river basin. It also includes the historical development of the institutional framework in the basin as this framework left a profound imprint on the South African society at large and is still dictating, in many cases, the interactions between the different organizations. 1.3 The Concept of HIM It is necessary to analyze the concepts, �water management� and �institutions,� to give perspective to the role that policy, legislation and organizations play in setting out the HIM for a river basin. 1.3.1 Water management �Hydro-� is defined in most dictionaries as �having to do with water.� The management of �having to do with water� (hydro-management, also known as water management) consists of water resources management on the one hand and the provision of water services on the other, which cannot be separated although they are distinguishable. The differences and the fact that they cannot be separated although they are distinguishable, should be taken into account when setting out the HIM for a river basin. Water resources management The objectives of water resources management are to ensure that water resources are protected, used, developed, conserved, managed and controlled in such a way as to achieve optimum, long- term, environmentally sustainable social and economic benefits for the society. The interactions and relationships between the following organizations and the society are of importance:· • First, organizations involved in the monitoring and regulating of the activities of the society that might impact on the water resources. • Second, organizations involved in the monitoring and regulating of those activities that generate waste and the waste generated that might affect water resources. • Third, organizations involved in the monitoring and regulating of different land uses and the activities associated with each land use that might affect water resources. 4 If done correctly, such monitoring and regulation could assist in achieving the objectives of water resources management and also assist in ensuring sustainable provision of water services for these activities. Provision of water services Water services are the services necessary to enable water users to use their water resources on a sustainable basis. Provision of water services therefore includes activities such as the abstraction, conveyance, treatment and distribution of water to water users; the collection, removal, treatment and disposal of waste generated due to the use of water; and the provision of resources, assistance and information associated with these activities. The provision of sustainable water services should be done in such a way as to ensure the achievement of the objectives of water resources management. This could be done as follows:· • First, putting in place an enabling framework for sustainable provision of water services to the different sectors. These sectors could be small-scale irrigation, feedlots, supporting life and personal hygiene, power generation, mining, etc. • Second, putting in place a framework for assisting and monitoring the organizations responsible for and associated with the provision of water services. • Third, the establishment of the necessary organizations or assigning the function to existing organizations to undertake sustainable provision of water services. 1.3.2 Institutions �Institution,� with reference to HIM, refers to either the rules or an organization having to do with water, or both. Rules Rules consist of principles and norms governing the rights to, and the usage and protection of water resources, where the majority of the society feels committed. Any organization may make a rule, resulting in some being formal and others informal, and some legally enforceable but others not, depending on who makes the rule. Rules include policies, laws (including statutory, administrative and common law), ethics, morals, values and practices. Rules may even include religious norms and practices. Organizations An organization consists of a group of people who come together to achieve a common water management objective. An organization need not be a body corporate (legal person) and can be formed formally, informally, voluntarily, compulsorily, by law and with or without a constitution. The group can form an organization itself or another person or organization can form an organization. An organization can therefore be an organ of the State, voluntary body, association, forum, company or committee. 5 1.4 Methodology This paper forms part of the project to set out the HIM for the Steelpoort river basin. This paper was compiled mainly based on information obtained from the following sources: • White Papers of the Government of the Republic of South Africa. • Information obtained during field visits to set out the HIM for the Steelpoort river basin. • Information on organizations obtained from the Internet and some discussions with them. • Water resources planning reports of the Department of Water Affairs and Forestry (DWAF). • Information obtained by one of the authors of this paper as a member of the project team to establish a catchment management agency (CMA) for the Olifants river basin. The time and resources available did not allow discussions with the relevant role players to determine their actual role and perceptions regarding water management. Recently, South Africa went through a process of transformation and many of the new policies, principles and measures required due to the transformation must still be developed, accepted and put into practice. It is still unclear, in many circumstances, how this will happen and various viewpoints exist. Therefore, some of the points in this document might not necessarily be official government viewpoints, which are in practice also very difficult to determine. Even in specific organizations there seems to be contradictory viewpoints. The contents of this paper must, therefore, be seen rather as a way to understand HIM and to get it on the right track. 6 7 CHAPTER 2 Institutional Framework to 1994 2.1 Introduction The institutional framework applicable in South Africa until 1994 left a profound imprint on the South African society at large. Until 1994, policies based on white (male) supremacy and racial segregation applied. These were replaced with a nonracial and nonsexist democratic system based on fundamental principles. However, the legacy of the previous framework is in certain cases still applicable, dictating the interactions between certain organizations, possibly for a long time to come. Therefore, to set out the HIM for the Olifants river basin, it is necessary to take into consideration the development of the previous institutional framework and how it was implemented. This chapter sets out the institutional framework applicable in South Africa until 1994 and how it developed during the twentieth century. 2.2 Policy of Apartheid Racial segregation was part of the social and economical pattern in South Africa from as early as the seventeenth century. The Blacks, for example, migrated from the North while the Whites came from the South. Each group occupied its own pieces of land, sometimes resulting in conflict. The Whites brought with them Western European cultures while the Blacks settled with much of their socio-political and economic systems intact. Black settlements were later known as �native reserves.� With the rise of the mining industry in the late nineteenth century, these became reservoirs of migrant labor, based on a regulated system of male Black workers migrating between the mines and the reserves. The National Party came into power in 1948 on the platform of a policy of apartheid. The essence of this was that the different racial groups that made up the population of South Africa should be kept separate as far as possible. Through the years, this became an ideology, prescribing in some detail how South Africa should be governed and how constitutional development should take place. Racial segregation then became an explicitly formulated program. Although race remained a central feature, culture and other aspects of ethnicity also played a role. Terms like �separate development� or �of separate freedom� were used to describe this policy. The framers of the policy saw it as a way to provide each race and ethnic group in the country a say in, and, indeed, complete control over, the running of their own affairs, while at the same time prohibiting dominance by any particular group. Over the years, the necessary structures were created to give effect to this policy. For example, national States and self-governing territories were established for the Blacks. The �native reserves� were central to this policy, first, as a base for migrant workers and, second, to control the Blacks under a separate legal and administrative system. The Natives Land Act of 1913 demarcated rural areas for the White and non-White residence and ownership, 8 imposing severe restrictions on the property rights of the Blacks. The Act and subsequent legislation, in 1936, also restricted the Blacks to ownership of only 13 percent of the country. At that stage, Black people made up three-quarters of the population. Most of the demarcated areas for the Blacks were incorporated into the national States and self-governing territories. The proponents of this policy argued that if this could be achieved, all the races that made up the population of the country would be able to live together in peace and harmony, but the implementation of the policy was widely seen as a means to oppress the Blacks. This policy was designed to guarantee political, social and economic domination of the country�s White minority over the non-White majority population. At the beginning of the 1990s, the national States and self-governing territories were home to over half the Blacks of South Africa and were characterized by extremely low incomes and high rates of infant mortality, malnutrition and illiteracy. South Africa had one of the most unequal distributions of income in the world, which strongly correlated with race, location and gender. In general, Black households were living below the official poverty line and the households headed by women were substantially worse off than those headed by men. 2.3 How Government Was Structured and Functioning 2.3.1 Constitutional matters South Africa was constituted as a Union in 1910 through the unification of four independent areas as part of the British Commonwealth. These were the Zuid-Afrikaansche Republiek (the area known as Transvaal), the Republic of the Orange Free State, Natal and the Cape Colony. In 1961, South Africa broke away from the Commonwealth and became a Republic. Since the creation of the Union, there was a drive to make the highest legislative structure, namely Parliament, a body represented and elected by the Whites only. This was achieved in 1956. White supremacy prevailed until 1984. In 1984, three houses were created in Parliament, a house each for the Whites, the Coloreds and the Indians. Representatives in each house were elected by the people belonging to that specific racial group. Each house made the laws applicable to its group (the concept of �own affairs�). All three houses together made the laws concerning all three groups (the concept of �general affairs�). Matters affecting the Blacks resided under the interests of general affairs. Parliament�s membership was therefore extended to include the Coloreds and the Indians, but it continued to exclude the Blacks. There was no fundamental law, for example a constitution, governing South Africa. Laws and actions could, therefore, only be tested against the common law. No fundamental law existed to determine, for example, whether any rights were being violated. The constitution made by Parliament in 1961 (when South Africa became a Republic) and again in 1984 (the creation of the three-house Parliament) were ordinary Acts of Parliament setting out certain arrangements as any other Act. 9 2.3.2 Government The structure of government was based on the Westminster system as inherited from the British. The structure has changed over the years but it retained the following characteristics: • A Parliament consisting of house(s) whose members were elected by constituencies. The majority party ruled while the minority party was the official opposition with the function of criticizing the policy of the government. • A cabinet of ministers (with the leader of the majority party as the leader) consisting of members of the majority party and accountable to Parliament. A Minister was appointed to each Department of State. • A State President who was politically neutral and acted on advice from the Ministers. (The neutrality faded in 1984 when the Prime Minister also became the State President.) • The relationship between the State President, Prime Minister, Ministers and Parliament was regulated by unwritten rules known as conventions. Until 1984, the Prime Minister (the leader of the majority party) appointed the Ministers. After 1984, the Prime Minister (who was now also the State President) only appointed the Ministers responsible for general affairs matters, each responsible for a general affairs department, while the leader of each of the three houses appointed the Ministers for own affairs, each responsible for an own affairs department. This resulted in the establishment of a larger number of government departments. Water, for example, was a general affairs matter, while agriculture was an own affairs matter. Water was, therefore, the responsibility of a general affairs Minister and Department, while agriculture was the responsibility of three different Ministers and Departments, each looking after the interest of a specific racial group. South Africa was divided into four provinces, each with an administration with certain responsibilities. Although not a federal system, it contained certain elements of such a system. There was, for example, no division of power and competencies between the government and the provinces set out in a constitution. The system was rather a form of devolution of power. Provincial administrations formed an extension of the government exercising certain functions within a geographical area. The administrations got their powers, legislative and executive, from Acts made by Parliament. The whole of the Olifants river basin, except the areas of the national States and self-governing territories, was situated in the jurisdiction of the Transvaal Provincial Administration. 2.3.3 Legislative sovereignty of parliament The parliament was created in 1910 with �full power to make laws for peace, order and good government of the Union.� The British Parliament in the United Kingdom retained the power to make laws for any part of the King�s dominions, thus also South Africa. The British Parliament could therefore make a law, even if it overruled a law made by the Union�s Parliament. Furthermore, the Union�s Parliament could not make a law contrary to a law that the British Parliament intended to extend to the Union. In 1931, the British Parliament recognized the full equality of the dominions and established the Commonwealth of Nations, an association of independent nations of which South Africa formed part. The Union�s Parliament was now 10 empowered to reject any law of the British Parliament if it decided so and enact any legislation concerning domestic matters. In 1961, the Parliament became the institution with the highest legislative power. It was, therefore, legislatively sovereign with unlimited law-making powers. Acts made by Parliament could not be reviewed by the Courts and declared invalid, except if the procedure to promulgate the law was not followed. Acts could, therefore, be unfair, unreasonable, unjust, inequitable and discriminatory. 2.3.4 Creation of national States and self-governing territories In pursuit of the goal of separate institutions for each racial and ethnic group, there was an attempt to divide South Africa gradually into various States, each entirely independent and autonomous with no political control by South Africa. Virtually no country other than South Africa recognized this system. Four territories accepted their autonomy and became independent national States. The other six territories had chosen not to accept autonomy or were not ready to accept it. These became self-governing territories still under political control of South Africa. The national States and self-governing territories stayed economically, financially and otherwise completely dependent on South Africa. Specific legislation was enacted from 1936 to 1976 allowing the first national State (Transkei in the Cape Province) to become independent in 1976. As far as the other territories were concerned, the Self-Governing Territories Constitution Act of 1971 of the Parliament of the Republic of South Africa was designed to enable the Government of South Africa to gradually lead each area to independence. First, a legislative assembly was constituted, with restricted powers and subject to the approval of the State President of the Republic of South Africa, for an area seeking independence, followed by declaring the area a self-governing territory. The legislative bodies of the self-governing territories had the power to make, amend or repeal laws with regard to certain matters. Appendix 1 contains a list of these matters relating to water. Yet other matters were governed by laws made by the Republic of South Africa. The executive government of a self-governing territory was vested in a Cabinet, which consisted of a Chief Minister and other Ministers. The Cabinet was constituted from the members of the legislative body for the territory. The Cabinet exercised the powers and performed the functions and duties imposed upon it by law. The Cabinet could establish departments in connection with specified matters with the approval of the State President of the Republic of South Africa. Sometimes it was very difficult, in practice, to determine whether an amendment to a law made by the Republic of South Africa was also applicable to the self-governing territories or not. It was in certain cases also uncertain whether the Ministers of the self-governing territories or the Minister of the Republic of South Africa should issue certain permits. For example, the issuing of permits relating to the use of water for irrigation were, it seems, the responsibility of the Ministers of the self-governing territories, while it was unclear whose responsibility it was to issue permits relating to the use of water for industrial purposes. Various conflicting legal opinions were given on the matter, which confused the matter without resolving it. Legislative assemblies were established for most of the identified areas during the early 1970s. When the national States and self-governing territories were incorporated into the remainder of South Africa in 1994 all these areas had already been declared self-governing territories. 11 Small portions of the national State of Bophuthatswana fell within the northwest portion of the Olifants river basin. Lebowa, KwaNdebele and Gazankulu were self-governing territories in the basin. 2.4 Water Policies and Legislation Rights to use water in the Republic of South Africa, the national States and the self-governing territories were subject to the principles of the South African water law. These principles had their roots in the Roman law, Dutch law and English law. 2.4.1 The foundation of the water law The Roman water law was a primitive system regulating the legal relationship within a small farming community along the Tiber river in the Roman Empire in Europe more than 2000 years ago. It made a distinction between public and private water. Public water was a source of water that had a potential for communal use, while private water had limited applications. The State was dominus fluminus over public water. This means that the right to use public water was vested in the State and a person could only use it if authorized by the State. The exact role of the State regarding authorization was not clear. On the other hand, private water (which included underground water) was regarded as private property. The owner of land on which private water was found had the full and exclusive use of that water. Except for certain changes, these principles were retained in the Roman-Dutch law when Roman law was gradually precipitated into the law of the Netherlands between the fourteenth and sixteenth centuries. With the settlement of the Hollandsche Oos-Indiese Kompanjie at the Cape of Good Hope in 1652, Jan van Riebeeck and those who succeeded him in the command of the settlement, applied the dominus fluminus principle to the streams of the Table Mountain Valley. Later, this principle was also applied to other perennial rivers as the Kompanjie�s sphere of influence extended and the Cape Colony increased in size. The Kompanjie�s general policy was to grant leases of farming land for limited periods and to retain inherent ownership of the soil. It also granted small areas of land in freehold to certain individuals. In the outlying districts water rights were regulated by landdroste and heemraden (magistrates and councils). They were appointed to hold inquiries, apportion water and settle disputes between owners of properties abutting streams. When South Africa came under British rule in the beginning of the nineteenth century, a new system of freehold land tenure was introduced. It gave ownership to the person occupying the land. The natural rights pertaining to land then belonged to the owner of the land. Due to this, the Cape Supreme Court replaced the dominus fluminus principle in respect of public water by the riparian rights principle. According to this principle, the owners of the properties adjoining a river (riparian land) have the exclusive right to use the water of the river. It took a long time to lay down criteria to classify water as public or private as well as the rights to these waters. It was propounded that the use of public water was common to the riparian owners and a system of proportionate sharing of the water by riparian owners was applied. The concept of a public stream was also extended to include intermittent rivers typical of South Africa. (Under Roman law only perennial streams could be public streams.) Private water was the exclusive 12 property of the owner on whose land it was found and the owner was entitled to use, alienate and dispose of it, subject to the ancient customary law. Water requirements for land not adjoining a river, for example for urban use on non-riparian land, required special legislation in each case. The State played no active role in establishing waterworks and the apportionment of water became the exclusive function of the judiciary. The different principles were ultimately synthesized in the first codification of the South African water legislation. These were the Irrigation Act (Cape) of 1906 and the Irrigation Act (Transvaal) of 1908. 2.4.2 The Irrigation and Conservation of Water Act of 1912 After the Union of South Africa was formed in 1910, the Irrigation and Conservation of Water Act of 1912 was promulgated to codify all the water laws of the Union. This was a compromise between the Northern (Transvaal and the Orange Free State) and Southern (Cape and Natal) provinces of the Union�s requirements. The Act was based on the Irrigation Act (Cape) of 1906 but its provisions were modified to embrace the Northern conditions. The characteristics of a public stream were changed by substituting �general common use� with �common use for irrigation.� Furthermore, the traditional application of the riparian rights principle for public water was found not to suit the flow patterns of most South African rivers (mainly in the northern part of South Africa). Typical flows do not readily lend themselves to pro rata apportionment, as these flows fluctuate considerably and dependable flows normally constitute only a small percentage of the runoff. A distinction was accordingly made between normal flow, which was broadly defined as the perennial part of the river�s flow, and surplus water, which represented irregular high flows after heavy rains. Riparian owners still had the rights to use public water. Riparian owners could use as much surplus water as could be used beneficially. Only normal flow was subject to apportionment. The Water Courts resolved any disputes over water. Water requirements for non-riparian land still required special legislation. Over 40 different special Acts were promulgated for this purpose. Private water was still reserved for those on whose properties the water was found. The State�s involvement was largely the construction of irrigation works and the provision of water for irrigation from these works. The provisions of the Act established the pattern for further development of South African water legislation. This entailed progressively greater State involvement in the development of limited water resources in the public interest. Limited control over the use of public water for irrigation by riparian owners was exercised by the State through the establishment and supervisory control over irrigation boards. 2.4.3 Control over the water resources in terms of the Water Act of 1956 Urban and industrial development in South Africa during the first half of the twentieth century placed additional demands on the relatively limited water resources. The increased demand could not be accommodated by the traditional riparian rights principle. In 1950, a Commission of Enquiry into the water law was appointed, which led to the promulgation of the Water Act of 1956. The name of the Irrigation Department was then changed to the Department of Water Affairs to reflect the broadened scope of its task. Most of the principles of the Irrigation and Conservation of Water Act of 1912 were reenacted. However, the State obtained more power over the rights to use water, gave a rightful 13 place to industrial use and created structures enabling non-riparian landowners to obtain rights to water. The State was involved in the construction of government waterworks for the supply of water for irrigation and other purposes, but only in regard to existing rights that have been exercised beneficially. The State was not involved in the construction and operation of waterworks for individual users but gave financial and technical assistance to irrigators and municipalities. The riparian principles still applied in the Water Court to settle disputes over public water. If it was in the public interest or due to the construction of a government waterworks, the State could declare a government water control area and thereby regulate the rights to use public water subject to rights that had been exercised beneficially. This was done by determining the rights and placing limitations on the storage, abstraction and use of water with a system of abstraction and works permits based on quantitative measures and restrictions. A person was entitled to buy the water rights from another property. If the water was used on non-riparian property or for industrial purposes, the permission of the Water Court was needed. The court could prescribe conditions to control water pollution. Most water rights were not supported by documentation (because of the riparian right principles). Furthermore, it was also expensive and technically difficult to ask the Water Court to resolve a dispute. For example, it was technically difficult to prove whether water abstracted from sand next to a river was derived from the river or on its way to the river (or both). In the first case, the water was public water and in the second case, it was private water and the rights to these were determined differently. Control over urban and industrial users was also exercised by the introduction of water boards. The functions of these boards included the provision of bulk water for urban and industrial use and regional sewage schemes in their areas of jurisdiction. The State retained control over irrigation boards. Measures were also introduced to control water pollution activities. For example, a person using water for industrial purposes had to purify or treat the water and effluent produced so that it complied with a prescribed standard. This included the use of water for a sewerage system or water purification works. After the water had been purified or treated, the water had to be discharged into the stream from which the water was abstracted or at another place as the Minister of Water Affairs might have indicated. Exemption could be obtained from the Minister for socioeconomic or technical reasons, provided an impact assessment was done on the likely impact of the discharge on the water resources. Diffused sources causing water quality problems could now also be controlled. The person in control of land where activities posed a pollution problem had to take prescribed steps to prevent water pollution. Only regulations for existing mining activities were promulgated. It was still difficult to identify activities that caused pollution and to develop the necessary steps to rectify the problem. If water became polluted, the Minister of Water Affairs could issue directives instructing the person responsible to remedy the matter. If the problem was still ignored, the Minister could remedy the matter and recover the cost from the person responsible. Appendix 2 contains a summary of the relevant provisions of the Water Act of 1956 relating to the determination and granting of rights to use water. 14 2.4.4 Government water control areas in the Olifants river basin Various government water control areas (shown in figure 2.1) were declared in the Olifants river basin. The value of declaring these areas as a water resources management tool was severely restricted by the ability of the authorities to determine the right to use water and implement control measures on the ground. Available manpower and financial resources often fell far short of needs for effective control. In some cases, actual control in the field was not of great importance but situations did arise where stricter policing was necessary to resolve problems and to avoid potential conflicts. Areas where water resources were furthest developed presented the most serious control problems. In the middle and lower parts of the Olifants river basin more effective control measures were necessary than in the basins of the Middelburg dam on the Klein Olifants river, Witbank dam on the Olifants river and the Rust De Winter dam on the Elands river. In the catchments of the Loskop dam, Middelburg dam and Witbank dam, the need for government water control faded and serious consideration was given to introduce only a system of controlling the maximum allowable storage capacity and abstraction rates. Water rights could then be determined according to the riparian principles. The reason was that the administrative burden of retaining full quantitative control did not justify the benefits achieved under the prevailing circumstances. 2.4.5 Water Court orders given in the Olifants river basin There were about 120 cases in which the Water Court was asked to hear arguments on issues relating to water in the Olifants river basin. Two cases are discussed below as examples. The Water Court was asked from time to time to make an apportionment of available normal flow in a public stream between riparian properties. These orders were very detailed and technical, and were used to construct and operate flow diversion structures in irrigation areas. A good example is the Court Order dated 7 November 1918 following an application by a certain Byrne along the Waterval river. These types of orders were very important on a local level and seldom had a major impact on the availability and utilization of water resources on a regional and basin level. Another Water Court order involved Tubatse Ferrochrome (Pty) Ltd. in the Steelpoort river basin. The company was entitled to use public water from the Steelpoort river for agricultural purposes. They applied in 1976 to the Water Court to use the water for industrial purposes, which the Court authorized. Tubatse also withdrew groundwater out of sand reservoirs next to the Steelpoort river. There were disputes between Tubatse and the riparian owners over the status of the water, i.e., was it derived from the Steelpoort river or not. If the water was from the Steelpoort river, it formed part of their rights allocated by the Water Court, with certain types of control measures applicable (for example, water may only be withdrawn if the flow in certain furrows exceeded predetermined flow rates). If not, the water was private water, which did not form part of the rights allocated by the Water Court, in which case other measures applied. This dispute was not really resolved, illustrating the technicality and complexity of applying the water law. 15 Figure 2.1. Areas declared as government water-control areas. 16 2.4.6 The Water Act of 1956 and the national States and self-governing territories Laws applicable in the Republic of South Africa stayed in force for a specific territory when it became a national State or self-governing territory, until amended or repealed by a competent authority. The Water Act of 1956, therefore, applied in the national States and self-governing territories. The national States had the power to amend or repeal the Water Act of 1956, but only the Republic of Bophuthatswana replaced the Act with the Water Act (Bophuthatswana) of 1988. This Act introduced the dominus fluminus principle into the law for that territory. In spite of the fact that the provisions of the Water Act of 1956 applied in the national States, except later in Bophuthatswana, and the self-governing territories, the impression was that all rights to the use of water (private and public) in these States were based on the dominus fluminus principle. This was because the majority of the land was State-owned and permission of the State was, therefore, needed to use the water found on that property. The State had rights to use the water as owner of the property in terms of the Water Act of 1956 and this right was transferred to the relevant users. Sometimes, the problem was to determine which official of the State had to grant the necessary permission. Land purchased in the Republic of South Africa to be incorporated into a national State or self-governing territory and placed under the jurisdiction of the South African Development Trust Corporation retained the rights to use water. The governments of these States and territories constructed various governmental waterworks for supplying water for irrigation and domestic purposes. Private persons, tribal authorities, NGOs and villages also constructed waterworks. 2.5 Land Tenure in the National States and Self-Governing Territories Land tenure in the national Sates and self-governing territories was different from that in the Republic of South Africa. In the Republic, land was predominantly privately owned, while most of the land in the national States and self-governing territories was held under some form of communal tenure. Other forms included freehold land held by individuals and groups and State land. Communal land tenure has its basis in African customary law. In South Africa, it was modified during the twentieth century. It combined elements of individual and collective property rights. An individual�s entitlement to land flows from membership of a traditional, ethnic community (a village or tribe). Land for arable or residential purposes was usually obtained through the relevant chief. A chief is the tribal head of an area, which usually includes several villages. Usually, each village has a headman who represents the chief of that area. Once allocated, the land was reserved for exclusive use of the occupying household, which could not be sold or transferred. All land issues were and still are dealt with by the chief. Unallocated land was available to community members as common resources, mainly for grazing. In the early 1990s, the local magistrates were tasked with the authority to issue permission to occupy certificates, 17 which granted exclusive life-time usufructuary rights to individuals, but not allowing for selling, mortgaging, leasing or subdivisioning. Legally, most of the communal land was owned by the State, but held in trust for special tribal communities and allocated by the authorities to people living under their jurisdiction on a usufructuary basis. The perception was that land belonged to the communities or the tribal authorities, notwithstanding that the formal titles in the form of deeds were held by the State. Land administered under the communal system could be divided into three broad categories. The first was tribal land, which was occupied by tribes prior to 1936, in many cases without interruption. Type of ownership was appropriated, but was generally not accompanied by any change in occupation or land use. It often went unnoticed by the inhabitants. This land made up most of the land demarcated for the Blacks under the Natives Land Act of 1913. These lands were handed over to the South African Development Trust Corporation in 1936. The second category was land, mainly farms belonging to the Whites, expropriated and bought after 1936 and allocated to the South African Development Trust Corporation. The expropriated land was held in trust by the State President of the Republic and allocated for use of specific communities or tribes living under their respective tribal authorities and village heads. The third category was land bought between 1910 and 1936 by groups of Blacks in undivided shares. Some groups were successful in having title deeds issued in their own names, while others were obligated to register in the name of a tribe or a State official, to be held in trust for the purchasers. Most of the land was later used and administered by communities or tribal authorities in a way that is indistinguishable from other communal land. Land was allocated usually to male household heads. Due to this, women faced multiple forms of discrimination within this tradition-bound society. They were able to gain access to land under a variety of conditions. As most of the tribal authorities did not encourage women to apply for land in their own name, most were obliged to acquire land through husbands or other male relatives, which left them with less-secure rights than their male counterparts. Both women and men could inherit land and there was no specific protection for widows in the event of the death of a male plot holder. In recent years, considerable numbers of women�s groups had acquired very small areas of land for gardening projects from chiefs, but their legal rights on such land remain unclear. 2.6 Development Related to the National States and Self-Governing Territories Agriculture was commonly perceived in the national States and self-governing territories as subsistence-oriented and extremely marginal. Mainly, food crops for direct consumption were produced, under conditions that were relatively underdeveloped in terms of methods, materials and integration into the markets. Although agriculture was not the principal source of livelihood for a majority of the households, it did provide supplementary income for a substantial proportion of the population and made it possible to keep livestock as a form of investment. Pensions were probably the most important source of income in these rural communities. Some efforts were made in the 1960s to develop smallholder agriculture, including the expansion of the areas under irrigation. The government focused on preventing soil erosion, controlling cattle numbers and on a comprehensive system of physical planning. Some efforts were made to establish a small nucleus of commercial farmers. However, these were too scattered to form any foundation for community growth. 18 From the mid-1970s, agricultural policies focused on the development of a range of large-scale agricultural projects, mainly under the control of newly created semi-State organizations and private-sector investors. Most were highly inefficient and ineffective and declined by the late 1980s, mainly because of too high operational costs. 2.7 Organizations Involved in Water Management Due to different political organizations for the different groups in South Africa, water resources management was used to be the responsibility of 11 departments of State and 14 departments for agriculture, each with its own staff structure, roles, responsibilities, needs, norms, authorities and expectations. Furthermore, various organizations were responsible for the provision of water services. This resulted in inefficient and ineffective water management. A complete and comprehensive summary of the State of events is not possible. This part of the chapter only sets out the role of some of these organizations. 2.7.1 Republic of South Africa Department of Water Affairs and Forestry The Department of Water Affairs and Forestry (DWAF) was a general affairs department mainly responsible for water resources management in the Republic of South Africa. Its sphere of influence included, to a large degree, the national States and self-governing territories. The DWAF acted as custodian over water in South Africa. The DWAF�s functions and responsibilities included negotiations with other countries on joint water use, administration of the water legislation, estimation of water demand and availability, water resources planning, water resources development, the transfer of water between catchments, drought and flood management, safety of dams, control over the abstraction of public water, management of the quality of the water and the provision of technical and financial assistance to the private sector and to statutory bodies to develop water resources. The DWAF encouraged local bodies to assume responsibility for activities that were of greater local interest than national interest and for services then being provided by government. Department of Agriculture The Department of Agriculture was a general affairs department mainly responsible for the protection of the agricultural resources, namely soil, water and plants. These included actions to prevent draining of moors and marshes, bush encroachment, veld degradation, soil erosion and water wastage. Department of Agricultural Development, House of Assembly The Department of Agricultural Development, House of Assembly, was an own affairs department (for the Whites) responsible for agricultural development and financing the construction of waterworks for the white population. 19 This department was also for a period responsible for the administration of the irrigation boards to which white farmers belonged. Department of Development Aid The Department of Development Aid was a general affairs department mainly responsible for ensuring effective development aid to the self-governing territories and the South African Development Trust land. This task encompassed controlling urbanization, obtaining and controlling of land for the rectification of territorial areas, promoting development work and rendering agricultural and administrative assistance in the self-governing territories and on South African Development Trust land. Department of Environmental Affairs The Department of Environment Affairs was a general affairs department responsible for promoting optimal utilization of the environment. Department of Planning and Provincial Affairs The Department of Planning and Provincial Affairs was a general affairs department responsible for coordinating all major development projects in the Republic. Transvaal Provincial Administration The Transvaal Provincial Administration was one of four provincial administrations, consisting of various directorates, responsible for nature conservation, community development, roads, works and health services. The main objective of the Directorate of Nature Conservation was the preservation of the environment by conservation and furtherance of the interests of natural resources. The Directorate Local Government Affairs provided certain municipal and community services to towns too small to warrant having their own town councils. Services provided include water supplies, health services, sanitation, electricity and roads. Regional services councils Various regional services councils were established as autonomous authorities to provide services on a regional basis. The councils did not operate in competition with existing municipalities but as a horizontal extension. The councils consisted of representatives of each local authority in a particular region. A regional services council was responsible for those functions that could be performed effectively on a regional basis, such as bulk water supply, bulk electricity supply, sewage works, roads and community facilities. The idea was that these councils should not take over the functions of municipalities but, in certain cases, these services councils were entrusted with such functions. Preference was given to the establishment of infrastructural services in areas of greatest need. Projects were carried out in association with the municipalities in whose areas the projects were being undertaken. 20 Municipalities Town Councils, elected by the inhabitants of a town, were in charge of municipalities. A council was responsible for the provision and maintenance of infrastructure including water, electricity, roads, parks and health services for the town. 2.7.2 Lebowa self-governing territory Department of Agriculture and Environmental Conservation The Department of Agriculture and Environmental Conservation was responsible for agricultural development, water supply, dam construction, water purification, water reticulation to towns and settlements, and the planning and establishment of irrigation schemes in Lebowa. Department of Economic Affairs and Technology, Lebowa The Department of Economic Affairs and Technology, Lebowa was responsible for community development, mining and strategic planning, transport and labor matters. Lebowa Development Corporation The Lebowa Development Corporation was a statutory body with a Board of Directors appointed by the Lebowa Cabinet. The objectives of the Corporation were to promote economic development in Lebowa by establishing, planning, financing, coordinating and performing industrial, commercial, financial, transportation, tourism and other business undertakings and projects. Lebowa Agricultural Company The Lebowa Agricultural Company worked closely with the Department of Agriculture and Environmental Conservation of Lebowa and was financed by the Lebowa Development Corporation.This company acted as a development agency for the Department and one of its objectives was to develop, finance and manage agricultural schemes. Town councils in Lebowa�s self-governing territory Each town had a Town Council. Towns were divided into wards. The Councils handled the allocation of business rights, building sites and licences, housing and land-use planning. They collaborated with the Department of Health in such matters as the construction of sports stadia and the development of parks. They acted in an advisory capacity to the government but had no legislative powers. 2.7.3 KwaNdebele self-governing territory The departments involved in water management in the KwaNdebele self-governing territory were the Department of Agriculture and Environmental Affairs and the Department of Works and Water Affairs. They and the other organizations performed similar functions to the departments in the Lebowaself-governing territory. 21 2.7.4 Gazankulu self-governing territory The departments involved in water management in the Gazankulu self-governing territory were the Department of Agriculture and Forestry and the Department of Public Works. They and other organizations performed similar functions to the State departments in the Lebowa self-governing territory. 2.7.5 South African Development Trust Corporation The Native Trust and Land Act of 1936 created the South African Native Trust (later to become the South African Development Trust Corporation), administered by the Department of Development Aid. The Trust was responsible for the supply of basic infrastructure in the self-governing territories, for obtaining and consolidating land necessary for the national States and self-governing territories, and for establishing, financing and maintaining, among others, the respective Development Corporations. 2.7.6 Permanent Water Commissions Permanent Water Commissions were established between the Republic of South Africa and each independent national State and self-governing territory. Each country had equal representation on a Commission. A Commission made recommendations to the different governments regarding the management of the joint water resources, which included the division, regulation, supply and use of water. If necessary, an agreement could be concluded between different governments regulating these matters. Although permitted, no agreements were concluded involving any self-governing territory. 22 23 CHAPTER 3 Constitutional Requirements 3.1 Political Changes The political, social and economic development in South Africa during the last decade of the twentieth century brought about a nonracial and nonsexist democratic system based on fundamental principles. This chapter sets out the constitutional requirements relating to water management brought about by these developments. During the late 1980s and early 1990s, the Government of the Republic of South Africa was forced by sanctions and diplomatic and political pressure to dismantle the legal basis of apartheid. This was a long and difficult process. For example, the ruling National Party was, at first, unwilling to transfer rule completely to the country�s black majority and tried vigorously to institute minority veto powers for major decision areas. The African National Congress (ANC) staged strikes and other nonviolent protests to try to force the National Party to change their position on this issue. Eventually, as a result of compromises by the various role players, an agreement was reached on 13 November 1993. This agreement pledged the institution of a nonracial, nonsexist, unified and democratic South Africa based on the principle of �one person, one vote.� The various national States and self-governing territories were also incorporated into the Republic of South Africa to form one country again. After the 1993 interim Constitution of South Africa was enacted based on this agreement, the country held its first multiracial election in April 1994. The Government of National Unity was formed, with the ANC the majority party. The interim Constitution required from the Government of National Unity to enact within 2 years a new Constitution for South Africa based on certain accepted principles as set out in the interim Constitution, which resulted in the Constitution of the Republic of South Africa of 1996. These political changes prompted the establishment of a democratic and open society based on democratic values, social justice and fundamental human rights. With these, SouthAfrica gained the necessary framework to improve the quality of life of all its citizens. In spite of these changes, certain elements of the previous institutional framework still apply and inequalities still exist. The government is in the process of transforming to a new framework. In certain cases, it is difficult to determine what is actually happening at the local, village and community level. In such cases, the framework is set out as envisaged by the policy statements. 3.2 The Bill of Rights The Bill of Rights, as contained in the Constitution, is the cornerstone of the democracy in South Africa. It applies to all laws and may not be violated. It binds the legislature, the executive, the 24 judiciary and all other organs of the State. These institutions must respect, protect, promote and fulfill these rights. The following rights are of importance when setting out the HIM: • Equality (Section 9): Everyone is equal before the law and has the right to equal protection and benefit of the law. • Human dignity (Section 10): Everyone has inherent dignity and the right to have their dignity respected and protected. • Environment (Section 24): All persons have the right to an environment that is not harmful to their well-being. The environment must be protected, for the benefit of present and future generations, through reasonable legislative and other measures. These measures should prevent pollution and ecological degradation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. • Water security (Section 27): All persons have the right to have access, among others, to sufficient water. The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right. The promulgation of the Water Services Act (WSA) and the National Water Act (NWA) gave effect to these rights from a water perspective. The instruments to be developed and implemented in terms of these Acts must be such that effect is also given to these rights. 3.3 How Government Is Structured and Functioning 3.3.1 A three-sphere government In terms of the Constitution of the Republic of 1996, the government is constituted into national, provincial and local spheres of government. The Constitution states that these spheres are distinctive, interdependent and interrelated. Provincial and local governments are, therefore, new spheres of government in their own right and not functions of the national government anymore. Each sphere contains the different organs of the State necessary for the government to fulfill its obligations. Organizations exercising public powers or performing public functions in terms of legislation, for example, CMAs and water boards, are also organs of the State, although they do not form part of any sphere of the government. 3.3.2 Functional areas of the different spheres of government The functional areas for which each specific sphere of government is responsible are set out in the Constitution of the Republic of 1996 and are as follows.· 25 • Exclusive national government functional areas By implication, the Constitution assigns the following functional areas relevant to water management exclusively to the national government: water resources management; minerals; land affairs; national parks; energy; labor.· • Concurrent national and provincial government functional areas The Constitution assigns the following functional areas relevant to water management concurrently to the national and provincial governments: agriculture; disaster management; education at all levels, excluding tertiary education; evironment; housing; industrial promotion; nature conservation, excluding national parks and national botanical gardens; pollution control; regional planning and development; soil conservation; trade; tourism; and urban and rural development. Regulating the following local government matters: air pollution; building regulations; municipal planning; storm water management systems in built-up areas; water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems.· • Exclusive provincial government functional areas The Constitution assigns the following functional areas relevant to water management exclusively to the provincial government: abattoirs; provincial planning; provincial recreation and amenities. Regulating the following local government matters: cemeteries; cleansing; control of public nuisances; municipal parks and recreation; municipal roads; refuse removal, refuse dumps and solid waste disposal. • Local government functional areas The Constitution assigns the following functional areas relevant to water management to the local government: air pollution; building regulations; municipal planning; storm water management systems in built-up areas; water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems; cemeteries; cleansing; control of public nuisances; municipal parks and recreation; municipal roads; refuse removal, refuse dumps and solid waste disposal. The national government and the provin cial governments have the legislative and executive authority to see to the effective performance by municipalities of these functions by regulating the exercising by municipalities of their executive authority. 26 Each sphere has legislative and executive authority as far as a specific functional area is concerned. In spite the above, development of national approaches is possible if deemed necessary for national uniformity, to protect the environment, to maintain essential national standards and to establish minimum standards required for the rendering of services, among others. 3.3.3 Cooperative government and intergovernmental relationships The policies and activities of one sphere of government or an organ of State may impact on the responsibilities and functioning of another sphere or organ. Therefore, the Constitution of the Republic of 1996 obliges all three spheres and all organs within each sphere to cooperate and consult with each other, respect the responsibilities of the others and exercise powers and perform functions in such a way as not to encroach on the integrity of another sphere. Furthermore, the different spheres and organs may only exercise powers and perform functions conferred on them in terms of the Constitution (powers and functions may, in terms of the Constitution, be assigned, transferred or delegated from one organ to another). The national government is in a very powerful position as it collects the majority of taxes and distributes monies mainly according to its determined priorities. A system of intergovernmental relations in South Africa is still emerging. To date, the development has focused mainly on the relationship between national and provincial governments and only as far as certain functional areas are concerned. The relationship with the other functional areas and local governments will develop over time. The establishment of CMAs, for example, as well as the development of catchment management strategies by these agencies in terms of the NWA, will assist with achieving the principles of cooperative government relating to water resources management and the provision of water services to support life and personal hygiene. The implementation of the White Paper on local government, and the development of water services development plans by water services authorities in terms of the WSA, will assist in achieving the principles of cooperative government relating to the provision of water services to support life and personal hygiene. The Constitution of the Republic of South Africa of 1996 requires the development of an Act to establish or provide for structures and institutions to promote intergovernmental relations. The Department of Constitutional Development is currently drafting a discussion document to open debate on this. The roles and responsibilities of each sphere within a system of intergovernmental relations will become clearer as this process unfolds. 27 CHAPTER 4 Water Resources Management In terms of the Constitution of the Republic of South Africa of 1996, water resources management, as part of water management, is an exclusively national government function. Managing activities generating waste and the waste generated, and regulating land uses that might affect water resources could be either an exclusively national, concurrently national and provincial, exclusively provincial or a local government function, depending on which sector and activities are involved. The national government must, in cooperation with the other spheres of government, ensure that the limited water resources are used to improve the quality of life of all South Africans. Principle 7 of the �Fundamental Principles and Objectives of a New Water Law� describes the objectives of the government in managing the water resources as to �achieve optimum, long-term, environmentally sustainable social and economic benefit for society from their use.� 4.1 Process to Develop Water Resources Management Policy Due to the democratic changes in South Africa and due to the inadequacy of the water legislation to meet the anticipated water management needs, in May 1994, the newly appointed Minister of Water Affairs and Forestry in the Government of National Unity initiated a process to review all the water-related legislation. This resulted in different products after 4 years of hard work and wide consultation. Now that the legislation has been put into operation, it will take some time to implement it for the whole of South Africa. The first real outcome was the �Fundamental Principles and Objectives for a NewWater Law in South Africa,� which the Cabinet approved in November 1996. These principles guided an intensive program of work involving political leaders, officials from the DWAF and other organs of the State, organized user groups and South Africans from all walks of life in a process of consultation, research and synthesis to develop the water resources management policy. This process was assisted by the support and involvement of officials and experts from other countries and from international organizations. This led to the publication of the �White Paper on a National Water Policy for South Africa,� dated April 1997, outlining the direction to be given to the development of water law and water-management systems, which will take South Africa into the twenty-first century. The National Water Act (NWA) was drafted, based on this policy and came into operation on 1 October 1998. The DWAF is, in a progressive and phased manner, busy with implementing the Act. Many of the provisions and measures required in terms of the Act have yet to be developed. 28 4.2 White Paper on a National Water Policy for South Africa Some of the key proposals in the �White Paper on a National Policy of South Africa� to guide water resources management are: • The status of the nation�s water resources as an indivisible national asset will be confirmed and formalized. • The national government will act as the custodian of the nation�s water resources and its powers in this regard will be exercised as a public trust. • All water in the water cycle will be treated as part of the common resources and to the extent required to meet the broad objectives of water resources management, which will be subject to common approaches. • Only that water required to meet basic human needs and to maintain environmental sustainability will be guaranteed as a right. This will be known as the Reserve. • In shared river basins, the government will be empowered to give priority over other uses to ensure that the legitimate requirements of neighboring countries can be met. • All other water uses will be recognized only if they are beneficial in the public interest. These will be subject to a system of allocation that promotes use, which is optimal to the achievement of equitable and sustainable economic and social development. The new system of allocation will take into consideration the investments made by the user in infrastructure for water use. • The new system of allocation will be implemented in a phased manner, beginning in water management areas that are already under stress. This system of allocation will use water pricing, limited-term allocations and other administrative mechanisms to bring supply and demand into balance in a manner that is beneficial in the public interest. • The riparian system of allocation, in which the right to use water is tied to the ownership of land along rivers, will effectively be abolished. Transitional arrangements will, in time, ensure an orderly, efficient and gradual shift in water-use allocations, as and when necessary. • Water-use allocations will no longer be permanent, but will be given for a reasonable period (e.g., 40 years), and provision will be made to enable the transfer or trade of these rights between users, with Ministerial consent. • To promote the efficient use of water, the policy will be to charge users for the full financial costs of providing access to water, including infrastructure development and catchment management activities. This will be done on an equitable basis and according to a realistic and reasonable program. • All water use, wherever in the water cycle it occurs, will be subject to a catchment management charge that will cover actual costs incurred. 29 • All water use, wherever in the water cycle it occurs, will be subject to a resources conservation charge where there are competing beneficial uses or where such use significantly affects other users. • The use of water resources to dispose of wastes will also be made subject to a catchment management charge, which will cover actual costs, and a resources conservation charge where there are competing beneficial uses for such use and/or such use significantly affects other users. • To promote equitable access to water for disadvantaged groups for productive purposes such as agriculture, some or all of these charges may be waived for a determined period where this is necessary to enable them to start using the resources. • To promote equitable access to water for basic human needs, provision will also be made for some or all of these charges to be waived. • All major water-user sectors must develop a water-use, conservation and protection policy, and regulations will be introduced to ensure compliance with the policy in key areas. • In the long term, since water does not recognize political boundaries, either national or international, its management will be carried out in regional or catchment water management areas. It must be recognized that conflicting interests will intensify the need for national management and supervision and that the policy of subsidization does not interfere with the need for a national and international perspective on water use. • Provision will be made for the phased establishment of CMAs, subject to national authority, to undertake water resources management in these water-management areas. • According to the White Paper, the usage of the country�s water resources is not restricted to the taking or storing of water. It includes transportation and purification of waste, removing groundwater for carrying out activities, altering courses of rivers, the creation of opportunities for recreation and eco-tourism, activities reducing the availability of water in watercourses and the conservation of biodiversity through the maintenance of habitats. Water resources should be used within their capacity to recover. If water resources are overutilized for short-term benefit, or if water resources are degraded due to the impacts of waste and land use, they can lose their ability to sustain utilization in the long term. There should be a proper balance between the uses of resources and the protection of the resources, which includes social and economic benefits as well as the determination of environmental objectives. Those involved, or their representatives, should weigh up the options on an informed basis. To achieve this, the systematic monitoring and evaluation of information are necessary. Water allocation will be made within a framework taking into account specific circumstances of different areas of the country. Priority will be given, first, to the overriding priorities of the government to make sure that �all people have access to sufficient water,� and second, �the protection of the ecosystems that underpin our water resources.� The framework requires that all usage of water resources should eventually be licensed and registered. Existing water users will 30 have to register their water use within a set time period. These will be evaluated and, where justified and possible, converted into a licence. The protection of water resources necessitated an approach based on resources-directed and source-directed measures. The distinction between the two is as follows: • Resources-directed measures focus on the water resource itself. The purpose of these measures is to set clear objectives for the desired level of protection for each water resource. • Source-directed measures focus on the sources of impacts from both point sources and diffused sources of pollution. These measures are aimed at what is done to the water resources, i.e., at managing and controlling the generation of waste at the source. 4.3 Legal Framework to Implement Water Resources Management Policy The NWA falls within the ambient of the national government functional areas and creates the legislative framework for implementing the National Water Policy. The Act requires that the national government, acting through the Minister of Water Affairs and Forestry, must ensure that the water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all. To do this, the Minister must not only ensure equitable distribution of water to all South Africans but also protect the water resources for usage by future generations. It is only by addressing these issues that the vision �Ensuring some for all, forever� can be achieved. This will be done within a framework of the national water resources strategy, catchment management strategies, setting of objectives and establishing suitable institutions. Furthermore, a phased process is followed to implement the necessary systems and measures required by the Act. 4.3.1 Creating the necessary organizational capacity The NWA establishes various organizations or allows for the establishment of organizations. Each of these organizations has a certain role to play regarding water management and achieving the purpose of the NWA. The organizations must have appropriate community, racial and gender representation. Catchment Management Agency (CMA) The necessary organizational capacity to assist with the implementation of the National Water Policy will be created through the establishment of CMAs. The Minister may establish a CMA for a water management area as set out in the national water resources strategy and it may be done on the Minister�s own initiative or after receiving a proposal. Water resources management functions could be delegated or assigned to these agencies, depending on their capacity, availability of resources and the relevant water resources aspects to be managed within their management areas. 31 The Olifants river basin forms a water management area and is identified as an area for which a CMAmust be established as soon as possible. The DWAF is in the process of establishing such an agency for this area. Governance Governance should be understood from two perspectives. First, a narrower or traditional perspective, which is linked to the internal corporate structure of the organization, and second, a broader perspective associated with the external regulatory mechanisms and control of an organization. The broader perspective is known as public governance, while the narrower perspective is known as corporate governance. The interest groups and stakeholders are all the organizations involved in water management and the water users. In their own interest, these organizations and users should cooperate to further the well-being of the organization. The concept of governance has, therefore, grown more complicated than previously. But governance should not be too onerous with the emphasis on control because it could stifle the organization. A proper balance needs to be achieved between freedom to manage, accountability and the interests of the different stakeholders. Governance of certain organizations involved in water management, such as CMAs, must go beyond the narrow concept of governance. Therefore, instruments should be in place to ensure not only good corporate governance but also good public governance. This is important, because lack of these could lead to poor water management. Furthermore, individuals in control of these organizations may proceed with their own agendas. As far as corporate governance is concerned, a CMA is a legal person with its own identity, managed and controlled by a governing board. The CMA can, for example, conclude contracts, sue or be sued, acquire, hold or alienate property and even manufacture and sell goods. As far as good public governance is concerned, the following instruments could be used to facilitate the manner in which a CMA should be regulated and controlled to achieve its goals and objectives in the public interest: • The Minister will appoint the governing board of the CMA after an open and objective process has been followed. • An official of the DWAF will be a member of the governing board to ensure that government policy is taken into account by the governing board and to facilitate communication with the State. • The duties of board members as well as the disclosure of interests are set out in the NWA, which requires, among others, that board members act honestly and exercise a reasonable degree of care and diligence in performing functions. • The CMA must, with the cooperation and agreement from the various stakeholders, prepare a catchment management strategy at least every 5 years. Thereafter, the Minister and the CMA concerned must give effect to the strategy. • The CMA must prepare an annual business plan. • The Minister may intervene in the activities of the CMA, if the agency is not fulfilling its obligations. 32 Powers, functions and duties of a CMA A CMA has original, assigned and delegated powers, functions and duties. These powers, functions and duties must be exercised within the scope of the common law, the national water resources strategy, the catchment management strategy and the resources-directed measures required in the NWA. Original powers, functions and duties: Original powers, functions and duties are those that a CMA has by virtue of its existence. A CMA is responsible as well as accountable for exercising original powers, functions and duties. If an established CMA is not functional yet, then these are vested in the Minister until sufficient capacity has been created. The original functions of a CMA (which are called initial functions in the NWA) are to: • investigate and advise interested parties on the protection, use, development, conservation, management and control of the water resources in its water management area • develop a catchment management strategy • coordinate the related activities of water users and water management institutions within its water management area • promote the coordination of the implementation of water services development plans required in terms of the WSA for municipalities • promote community participation in the protection, use, development, conservation, management and control of the water resources in its water management area • give a directive to a person to take the necessary steps on its property to prevent the pollution of water resources, and if the person fails to take the steps, to rehabilitate the water resources • give a directive to a person to clean up and remedy the effects of an accident in which a substance pollutes or has the potential to pollute water resources, and if the person fails to take the steps, to clean up and remedy the effects of the accident • make available information on water resources management Assigned powers, functions and duties: Assigned powers, functions and duties must first be assigned by the Minister to a CMA before it may exercise them. Before a power, function or duty is assigned to a CMA, they are vested in the Minister. A CMA is responsible as well as accountable for exercising assigned powers, functions and duties. The Minister may not interfere with the way these powers, functions and duties are exercised. The Minister may, after consultation with a CMA by notice in the Government Gazette, assign to a CMA: 33 • powers and duties related to the usage of water, which include the issuing, reviewing and amending of licences and verification of existing lawful water use • powers related to the - management, monitoring and protection of water resources - development and operation of a water work promoting a catchment management strategy - doing anything necessary to implement a catchment management strategy - making rules to regulate water uses - requiring water users to establish monitoring devices to monitor water usages - requiring alterations to water works - controlling water uses in drought periods Delegated powers, functions and duties: The Minister may delegate a vested power to a CMA. The Minister may not delegate a power to make regulations or to appoint members of the governing board of a CMA. Organs of a CMA A CMA operates through what is known as its organs. These organs together with the other organizations involved must be structured to allow the CMA to operate effectively and fulfill its responsibility. Governing board: The Minister determines the size of the governing board. There are two ways in which people are appointed to the board, namely those nominated by organizations representing different sectors and those nominated to achieve sufficient balances as far as gender, demography, communities without access to water and expertise are concerned. A member is appointed for a specified term of office. The governing board is responsible for the management of the affairs of a CMA and may exercise the powers of the agency. The board must meet at least twice a year. It is the role of the board:· • to decide the strategies and policies to be followed by the agency • to ensure that the agency exercises its powers or performs its duties in a proper, efficient, economical and sustainable manner Chairperson and deputy chairperson: The Minister convenes the first meeting of the governing board. The Minister must, with due regard to any recommendation made by the governing board at its first meeting, appoint one of the members as the chairperson and another as the deputy chairperson. 34 Temporary or standing committees appointed by the governing board: The governing board may appoint temporary or