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INSTITUTIONAL AND LEGISLATIVE CHARACTERISTICS OF THE SOUTH AFRICAN WATER SECTOR

INSTITUTIONAL AND LEGISLATIVE CHARACTERISTICS OF THE SOUTH AFRICAN WATER SECTOR. THE SOUTH AFICAN LEGISLATIVE FRAMEWORK. MODULE OUTLINE. The role of law to implement policy Water law reform Legal systems that form the foundations of the South African water law

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INSTITUTIONAL AND LEGISLATIVE CHARACTERISTICS OF THE SOUTH AFRICAN WATER SECTOR

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  1. INSTITUTIONAL AND LEGISLATIVE CHARACTERISTICS OF THE SOUTH AFRICAN WATER SECTOR THE SOUTH AFICAN LEGISLATIVE FRAMEWORK

  2. MODULE OUTLINE • The role of law to implement policy • Water law reform • Legal systems that form the foundations of the South African water law • Legislative principles and requirements pertaining to water resource management • Strategies and plans assisting the facilitation of water resource management • Water uses, including validation and verification

  3. THE SOUTH AFRICAN LEGISLATIVE FRAMEWORK THE ROLE OF LAW TO IMPLEMENT POLICY

  4. THE ROLE OF THE LAW TO IMPLEMENT POLICY • Law can be study from various perspective • One is that the law is a mechanism to implement policy and strategies of government • Government formulates policy and gives effect to the policy by securing the enactment of legislation • Process of implementing and administering the policy is done by developing strategies and programs, and then applying the legislation and other measures to these

  5. THE ROLE OF THE LAW TO IMPLEMENT POLICY/cont • Policy is a statement of intent • Strategy is the course of action • Therefore • Policy: provides the reason why something should be done • Strategy: is the manner to achieve the policy goals • Law: stipulates what should be done, by whom, how, when and under what circumstances, as well as what should not be done • Policies and strategies are not legally enforceable, while law is

  6. THE SOUTH AFRICAN LEGISLATIVE FRAMEWORK WATER LAW REFORM

  7. WATER LAW REFORM • Minister initiated in May 1994 a process to review all the water-related legislation • due to the social, political and democratic reform that took place in South Africa • water-related issues experienced • international declarations • prominence given to fundamental human rights and environment-related matters • the Constitutional mandate • the Constitutional requirements should be met

  8. WATER LAW REFORM/cont • Set of products after four years of hard work and wide consultation • The first real outcome was the “Fundamental Principles and Objectives for the New Water Law in South Africa” which was approved by the Cabinet in November 1996 • Legal aspects of water • The water cycle • Water resource management priorities • Water resource management approaches • Water institutions • Water services • The principles guided a program to developed • The National Water Policy dated April 1997 • The Water supply and sanitation strategies and policies • Water Services Act 108 of 1997 • National Water Act 36 of 1998

  9. THE SOUTH AFRICAN LEGISLATIVE FRAMEWORK LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE SOUTH AFRICAN WATER LAW

  10. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW • Why is a good understanding of this necessary? • Legal systems that form the foundation of the law • Roman law • Roman-Dutch law • Anglo-American law • Period of Dutch administration • Influence of British occupation • Codification of the water law • Water Act 54 of 1956 and other water laws

  11. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont ROMAN LAW • Res omnium communes • Flowing and running water and water in lakes and ponds and the sources thereof • Belonged to the community • For usage by all • If heavy or competitive use, the State may intervene • Res singulorum • Surface water other than flowing and running water and water in lakes and ponds • Ground water, if not a source of surface water • Water appropriated that is res omnium communes

  12. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont ROMAN-DUTCH LAW • Roman law was almost forgotten and then incorporated into the Dutch law • Principles • Forms of water • res publicae • res privatae • Extent of entitlements • Control over the use of water • Was brought to the Cape of Good Hope

  13. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont PERIOD OF DUTCH ADMINISTRATION • Control over the streams of the Table Bay Valley • Placcaets • Expansion of the spheres of influence • Granted lease of land and entitlements to water • Entitlements regulated by landdroste and heemraden

  14. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont INFLUENCE OF THE BRITISH OCCUPATION • Introduction of the riparian principle • Organisational and administrative reform • The State lost its powers to grant entitlements • A new system of land tenure • Only owners abutting a river obtained entitlements

  15. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont Influence of the British occupation/cont • Forms of water • Public water • Private water • Extent of entitlements • Public water • Private water

  16. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont Codification of the water law • The beginning of the codification • Irrigation and Conservation of Waters Act 1912 • Special water-related legislation • Water Act 54 of 1956

  17. LEGAL SYSTEMS THAT FORM THE FOUNDATION OF THE WATER LAW/cont RELEVANT CONCEPTS OF THE REPEALED WATER ACT 54 OF 1956

  18. WATER ACT 54 OF 1956 Forms of water • Public water • Normal flow • Surplus water • Private water • Sources of a public stream • Tributaries

  19. WATER ACT 54 OF 1956/cont Utilisation of water outside water control areas • Public water • Entitlements • Normal flow • Surplus water • Permission by water Courts • Use of water by local authorities • Private water • Recognising certain rights • Transfer of entitlements

  20. WATER ACT 54 OF 1956/cont Utilisation of water in water control areas • Public water • Regulating the use of water in the public interest • Entitlements (sec 62) • Provisional rights • Permissions (3 types) • Allocation • Transfer of entitlements • Provision of water from government waterworks • Entitlements for irrigation (sec 63) • Transfer of entitlements • Entitlements for any purpose (sec 56(3)

  21. WATER ACT 54 OF 1956/cont Utilisation of water in water control areas/cont • Groundwater • Entitlements (sec 32A, 32B and 32C) • Acknowledging of existing use • Permissions • Allocation • Transfer of entitlements • Private water • Control over the construction of waterworks

  22. THE SOUTH AFRICAN LEGISLATIVE FRAMEWORK LEGISLATIVE PRINCIPLES AND REQUIREMENTS PERTAINING TO WATER RESOURCE MANAGMENT

  23. LEGISLATIVE PRINCIPLES AND REQUIREMENTS PERTAINING TO WATER RESOURCE MANAGMENT CONTENT • National Water Act • Water Services Act • National Environmental Management Act • Public Finance Management Act and Divisions of Revenue Acts • National Disaster Management Act • Spatial Planning and Land Use Management Act • Conservation of Agricultural resources Act

  24. LEGISLATIVE PRINCIPLES AND REQUIREMENTS PERTAINING TO WATER RESOURCE MANAGMENT NATIONAL WATER ACT

  25. NATIONAL WATER ACT CONTENT • Fundamental principles • Purpose of the Act • Public trusteeship • Resource directed measures • Source-directed controls • Pollution prevention • Legal duty to prevent pollution • Control of emergency incidents

  26. NATIONAL WATER ACT FUNDAMENTAL PRINCIPLES: PURPOSE OF THE ACT

  27. PURPOSE OF THE ACT Purpose of the NWA • Meet the basic human needs of present and future generations • Promote equitable access to water • Redress the results of past racial and gender discrimination • Promote the efficient, sustainable and beneficial use of water in the public interest • Facilitating social and economic development • Provide for growing demand for water use

  28. PURPOSE OF THE ACT/cont • Protect aquatic and associated ecosystems and their biological diversity • Reduce and prevent pollution and degradation of water resources • Meet international obligations • Promote dam safety • Manage floods and droughts, • Establish suitable institutions and to ensure appropriate community, racial and gender representation

  29. NATIONAL WATER ACT FUNDAMENTAL PRINCIPLES: PUBLIC TRUSTEESHIP

  30. PUBLIC TRUSTEESHIP • Public trusteeship of the nation’s water resources • National Government, acting through the Minister of Water and Sanitation, must ensure that the water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with the constitutional mandate • The Minister is ultimately responsible to ensure that water is allocated equitably and used beneficially in the public interest, while promoting environmental values • National Government has the power to regulate the use, flow and control of water in the Republic • It does not mean that Government owns the water, water is (still) res omnium communes • How should effect be given to this responsibility?

  31. NATIONAL WATER ACT RESOURCE DIRECTED MEASURES

  32. RESOURCE DIRECTED MEASURES • Resource directed measures • focus on the quantity and quality of the water resources • set and enforce clear management objectives (objective or numerical) • set a desired level of protection of the water resources • satisfy the water quality requirements of water users • remedy any detrimental effects on the water resources

  33. RESOURCE DIRECTED MEASURES/cont • Determine for each significant water resource (preliminary or final) • The class of the water resource (Class I, II and III) • higher levels to be strict, with the highest level (class I) the strictest, demanding a low risk of damage and the use of the resource with great caution (minimally used and overall conditions minimally altered from pre-development conditions) • the lower classes could be less strict, with the lowest class (class III), resulting in a higher risk of damage to the water resources (heavily used and overall conditions that are significantly altered from the pre-development conditions)

  34. RESOURCE DIRECTED MEASURES/cont • Determine for each significant water resource (preliminary or final)/cont • Resource quality objectives (RQO) • the quantity, pattern, timing, water level and assurance of instream flow • the water quality, including the physical, chemical and biological characteristics of the water • the character and condition of the instream and riparian habitat • the characteristics, condition and distribution of the aquatic biota

  35. RESOURCE DIRECTED MEASURES/cont • Determine for each significant water resource (preliminary or final)/cont • The Reserve • The water to satisfy basic human needs • The water needed for the protect the aquatic ecosystems • At least a preliminary determination of the Reserve should be made before authorising the use of water

  36. RESOURCE DIRECTED MEASURES/cont • A regulation set out the classification system • Give effect to the measures • A determination could be a • Desktop • Rapid • Intermediate • Comprehensive • It gives detailed substance to the way in which the water environment should be protected

  37. NATIONAL WATER ACT SOURCE-DIRECTED CONTROLS

  38. SOURCE-DIRECTED CONTROLS What is the difference between resource directed measures and source-directed controls?

  39. SOURCE-DIRECTED CONTROLS/cont Sources of pollution: • Point sources, which are the discharge, depositing or disposing directly into water resources of substances or water containing substances • Diffuse sources, which are substances finding their way into water resources from- • land that is wrongly dosed or overdosed with fertilisers or pesticides • soil erosion due to incorrect management practices • leachate from landfills • leachate from waste not effectively dealt with • leachate from resources not correctly stored • waste not effectively dealt with

  40. SOURCE-DIRECTED CONTROLS/cont Sources of pollution/cont: • Sources, other than point and diffuse sources, that pollute the water resource, such as- • activities in water resources that expose geological formations resulting in a chemical reaction contaminating the water • air emissions from beneficiation practices and burning of substances that fall to the earth causing contamination of the water • disposing of material on land in such a manner that it may impact on the water resources • wrong land usage patterns Incorporate conditions into authorisations

  41. RESOURCE-DIRECTED MEASURES/cont Difference between a Uniform waste standard approach and a Receiving Water Quality Objectives approach Pollution prevention approach Make a distinction between existing and new plants

  42. NATIONAL WATER ACT POLLUTION PREVENTION Legal duty to prevent and remedy the effects of pollution Control emergency incidents

  43. POLLUTION PREVENTION Legal duty to prevent and remedy the effects of pollution

  44. PREVENT AND REMEDY EFFECTS OF POLLUTION • The activities, processes and situations could include an activity or process that is- • abandoned without removing the potential hazardous substances used in or produced during the activity or process, or without rehabilitating the area used and disturbed during the activity or process • not regulating as a water use, but which has the potential to threaten or which is threatening a water resource • regulated as a water use, but not carried out in accordance with the conditions attached to the authorisation authorising the use, and therefore has the potential to threaten a water resource

  45. LEGAL DUTY TO PREVENT AND REMEDY EFFECTS OF POLLUTION/cont • The following persons must take all reasonable measures to prevent pollution due to an activity or process performed or a situation that exists on land • The owner of the land • A person in control of the land • A person who occupies or uses the land • The measures may include • cease, modify or control acts or processes causing the pollution • comply with prescribe measures and practices • contain and prevent the movement of pollutants • eliminate sources of pollution • remedy the effects of the pollution • remedy the effects of any disturbance of a watercourse

  46. PREVENT AND REMEDY EFFECTS OF POLLUTION/cont • Rectifying the effects of pollution • Catchment management agency may direct the person to take the measures, including specific measures • If person fails to give effect to the directive, the agency may take the measures it considers necessary • Directive still applies if property involved is transferred • Catchment management agency may recover the cost thereof from • a person responsible for or contribute to the pollution • the owner of the land at the time of the pollution • a person in control of the land at the time of the pollution • a person negligently failed to prevent the pollution • a person who benefitted from the measures (to the extent of such benefit)

  47. POLLUTION PREVENTATION CONTROL OF EMERGENCY INCIDENTS

  48. CONTROL OF EMERGENCY INCIDENTS • These accidents and incidents could include- • an accident involving a tanker transporting a hazardous substance where the substance is spilled onto land or a water resource • spillage of a hazardous substance at a factory • an accident (for example an explosion) at a factory involving a hazardous substance • spillage from a french drain into a water resource • overflow of water containing waste from an evaporation dam • It is not a leakage from a french drain or evaporation dam (because that is a situation that exist)

  49. CONTROL OF EMERGENCY INCIDENTS/cont • An incident is incident or accident in which a substance pollutes or has a detrimental effect on a water resource • Following should report the incident to the Department, SAPS or CMA • The responsible person • Person responsible for the incident • Person who owns the substance involved in the incident • Person who was in control of the substance at the time of the incident • Person involved in the incident • Person with knowledge of the incident • The responsible person should • take reasonable measures to contain or minimise the effects of the incident • undertake clean-up procedures • remedy the effects of the incident • take such measures as the agency may direct

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