Introduction
The Minister and, by implication, her Department have the ultimate responsibility of ensuring that water is allocated equitably and used beneficially in the public interest.[1] The National Water Act[2] (“NWA” or “the Act”) allows for the development of institutional structures to assist in the colossal task of ensuring that water resources are managed, used, protected, conserved, developed and controlled in a sustainable and equitable manner. These institutions are underdeveloped, under capacitated and underutilised.
Mechanisms to allocate water are complex and administratively onerous
A whole chapter of the Act[3] is dedicated to regulating the use of water. With that, the legal status of water as a resource is clear: the Act establishes the state as the public trustee of the nation’s water resources. In effect, water may not be used unless permitted by four entitlements established by the Act.[4] These include schedule 1 use, which involves only small volumes of water, existing lawful use, licensed use and general authorisations.
The Department is in charge of administering most of these processes which entail complex and administratively onerous operations. Entitlements permitted under an existing lawful use, for example, require the user to register their use, validate the quantity used and verify the lawfulness of the use.[5] Validation and verification forms part of a highly technical process that is foundational to our knowledge and understanding of water use rights but the process remains incomplete for many water resources.[6] Once a licence has been issued, compliance with the conditions that accompany the license must continuously be monitored and enforced.
The Department is unable to cope given its current financial and operational challenges. A recent report by the Centre for Environmental Rights (“CER Report”) highlights a complete failure by the Department to monitor and enforce compliance with water use licences issued to coal mines in Mpumalanga.[7] To date, the Department has not published its own report on the results of its compliance monitoring and enforcement activities, nor does it oblige companies involved in water use activities to publish compliance data themselves. This makes it more difficult for civil society to monitor water use activities.[8] A backlog in issuing licences has also resulted in some applicants unlawfully operating without a licence, as documented in the CER Report. Failure to complete the verification process means that we have an unreliable sense of the quantity of water used and who lawfully owns the right to use it for productive purposes.
The potential role of catchment management agencies in effectively managing water resources
The Act permits the establishment of catchment management agencies (“CMAs”).[9] Their purpose is to ensure that water resources are managed effectively at a regional or catchment level. It is envisioned that every water management area established by the Minister through the national water resources strategy will have a CMA. South Africa currently has nine water management areas – which are not aligned to provincial boundaries – but only two operational CMAs.
CMAs are not only important for encouraging and facilitating more community involvement in the management of regional water resources, but they have the potential to lighten the burden placed on the Department – if appropriately capacitated. The Act confers general powers and functions to a CMA once it is established.[10] Amongst these functions are investigating and advising interested persons on handling water resources in the area, developing a catchment management strategy, coordinating related activities of water users and institutions within the area and promoting community participation in water resources management. The catchment management strategy may set out principles for water allocation and use, and may consider issues relating to protecting, conserving, managing and controlling water resources within the catchment. But powers to perform functions relating to water resources management must first be delegated or assigned to CMAs in terms of the Act[11] before they are empowered to give effect to many of the principles set out in the strategy. These include the power to manage, monitor, conserve and protect water resources in their area, making rules to regulate water use, temporarily control and limit or prohibit the use of water during periods of water shortage. But even more, the Minister may assign powers to a CMA to administer existing lawful uses and licences in the area.[12]
In addition, CMAs have the potential to contribute significantly to transformation within the water use sector by initiating water allocation reform processes on a regional scale.
What are the drawbacks?
There are currently only two fully operational CMAs in South Africa – the Breede-Gouritz CMA in the Western Cape and the Inkomati-Usuthu CMA in parts of Mpumalanga. Establishing, capacitating and operationalising CMAs to date has proven to be a lengthy affair.[13] It is a highly participatory process, engaging stakeholders, ensuring labour relations and administrative structures are developed and securing the necessary financial and human resources. Given the considerable delay in establishing CMAs and ensuring that they fulfil their mandate as regional water management institutions, some critics have questioned whether establishing CMAs is a viable model for South Africa, particularly in view of the considerable challenges facing the Department.[14] If decentralised governance through CMAs is not the appropriate vehicle for better water resources management, however, it is unclear what the alternative model should look like.
Making use of regional or provincial Departmental offices is not working. Provinces do not have the competence in terms of the Constitution to influence the functioning of water governance or management – apart from their shared responsibility with national government to oversee and support local government in delivering water services.[15] Nor is it an effective model. The remaining seven CMAs, for example, are in the process of being established and are managed by the relevant provincial Department offices. Herein lies an arduous challenge for the Department and the effective management of water resources: boundaries for water resource management are not aligned to provincial ones. Catchments may span multiple provinces. The Department therefore has to work with more than one province to resolve issues affecting one catchment. The difficulties of liaising with a number of provincial offices on a single issue may be overcome, or at least notably reduced, through functional and fully capacitated CMAs.
Concluding observations
Significant challenges in the establishment of CMAs can be overcome. But given the complex nature of water management within different catchments, there is no one size fits all solution. The potential of CMAs remains significant and largely untapped. And it might take time. But the Act allows the Minister to appoint advisory committees to develop the capacity as a first step toward establishing functional CMAs.[16] Given the Act’s design of decentralised water governance, it envisions the role of CMAs to be far more substantial than they are at present.
Michelle Toxopeüs
Legal Researcher
michelle@hsf.org.za
[1] Section 3(2) of the NWA.
[2] National Water Act 36 of 1998.
[3] Chapter 4 of the NWA.
[4] Section 4 read with section 22 of the NWA.
[5] Section 35 of the NWA and the regulations requiring that a water use be registered, GNR 1352 of GG No 20606 of 12 November 1999.
[6] Breede-Gouritz CMA initiated its verification project in 2017. It is envisioned to run until November 2019. The IUCMA Annual Report 2017/2018 stipulates that the verification process in the Inkomati area is complete but it is still ongoing in the Usuthu area. Calls to start the engagement process into verification in the Olifants water management area were only published in 2017. This despite the Olifants river catchment being cited as one of the most stressed catchments from both a water quantity and quality catchment in South Africa. To date, there has been no progress reported on this project.
[7] CER (2019) “Full Disclosure: The Truth about Mpumalanga Coal Mines Failure to Comply with their Water Use Licences” accessed at https://fulldisclosure.cer.org.za/2019/doc/Full-Disclosure-2019.pdf.
[8] Organisations are able to access information through PAIA processes.
[9] Chapter 7 of the NWA.
[10] Section 80 of the NWA.
[11] Section 73 read with Schedule 3 of the NWA.
[12] Section 73 of the NWA.
[13] WRC (2018) “Lessons learnt from the Establishment of Catchment Management Agencies in South Africa” WRC Report No 2320/1/18 accessed at http://www.wrc.org.za/wp-content/uploads/mdocs/2320_final.pdf.
[14] Brown J (2011) “Assuming too much? Participatory water resource governance in South Africa” Geographical Journal 177(2), 171-185.
[15] While the Constitution affords provincial and national government the shared legislative competence over the environment, the NWA – which was enacted to give effect in part to the constitutional right to access sufficient water – places the ultimate responsibility of managing water resources solely in the hands of the Department. This does not mean that provinces do not play a role in managing water resources through its environmental mandate, but it is limited.
[16] Chapter 7 read with Chapter 9 of the NWA.
