LEGISLATIVE REVIEW - Western Cape€¦ · Web viewLEGISLATIVE REVIEW INTRODUCTION This legislative review of conflicts and gaps was done by creating a table (included in Annexure

Western Cape IWRM Action Plan: Status Quo Report Final Draft

3. LEGISLATIVE REVIEW

3.1 INTRODUCTION

This legislative review of conflicts and gaps was done by creating a table (included in Annexure A) of all the relevant national, provincial and local legislation that applies to water resource management in the Western Cape. All of the following laws, their regulations and notices, and all the relevant and available bylaws were reviewed and categorised according to the themes indicated in the table and as discussed below. The conflicts between the national laws were reviewed, and the gaps have been indicated. Similarly the bylaws were reviewed, but the conflicts between the national laws and the bylaws were not reviewed as the national legislation will always prevail. However, all the provisions relating to water resource management have been listed in the table, and that should therefore be read in conjunction with this report.

The legislation reviewed or referred to in this report is listed below:

AFA Adjustment of Fines Act (Act 101 of 1991) CARA Conservation of Agricultural Resources Act (Act 43 of 1983) Constitution Constitution of the Republic of South Africa (Act 108 of 1996) DMA Disaster Management Act (Act 57 of 2002) ECA Environment Conservation Act (Act 73 of 1989) Haz Act Hazardous Substances Act (15 of 1973) ICM (Act) National Environmental Management: Integrated Coastal Management Act

(Act24 of 2008)

IGRFA Intergovernmental Relations Framework Act (Act 13 of 2005) MSA Local Government: Municipal Structures Act (Act 117 of 1998) MSyA Local Government: Municipal Systems Act 32 of 2000 MH&SA Mine Health & Safety Act, (Act 29 of 1996) MHSA Mine Health and Safety Act (Act 50 of 1991) MCAA Mountain Catchment Areas Act, (Act 63 of 1970) MPRDA Minerals and Petroleum Resources Development Act (Act 28 of 2002) NEMA National Environmental Management Act (Act 107 of 1998) NEMAQA National Environmental Management: Air Quality Act (Act 39 of 2004) NEMBA National Environmental Management: Biodiversity Act (Act 10 of 2004) NEMWA National Environmental Management: Waste Act (Act 59 of 2008) NFA National Forests Act (Act 84 of 1998) NHRA National Heritage Resources Act (Act 25 of 1999) NWA National Water Act (Act 36 of 1998) Ordinance 19

of 1974 OSCA Regs Identification Of Activities Which May Have A Detrimental Effect On The

Environment: Outeniqua Sensitive Coastal Area, (R879 in Government Gazette 17213 of 31 May 1996)

Osca Ext Regs Identification Of Activities Which May Have A Detrimental Effect On The Environment: Outeniqua Sensitive Coastal Area Extension, (R1526 in Government Gazette 19493 of 27 November 1998)

Status Quo Report © DEADP 6


PAA National Environmental Management: Protected Areas Act, 2003 (Act 57 of 2003)

PAJA Promotion of Administrative Justice Act (Act 3 of 2000) WSA Water Services Act (Act 3 of 1997) Water Act of 1956

(Act 54 of 1956)

3.2 HOW TO USE THE TABLE IN ANNEXURE A

The various legislative provisions were categorised according to the following themes: Quantity & Supply Quality & Pollution Demand and Efficiency Climate Change Emergency and Disaster Planning and Land Use Authorisation & Licences Public Participation General

Regarding the above classification, it is relevant to note that: Some provisions fall under more than one heading; No provisions directly affecting climate change were found; “Public Participation” was interpreted widely and provisions on consultations with other

government departments were also included under this heading.

The above classification provides a matrix tool in which all provisions applicable to each of the above mentioned themes are listed. This then allows for the results to be filtered under the individual headings, providing a very helpful tool that lists all provisions in all legislation under the particular theme.

All references to sections of legislation where they are quoted in the table under the regulations refer to specific regulation numbers. A capital “S” for regulations under the national legislation and a small “s” for references in the bylaws.

3.3 CONFLICTS WITHIN THE NATIONAL & PROVINCIAL LEGISLATION

3.3.1 General Comments

The following general observations have been noted.

Most of the legislation contains a provision dealing with conflicts with other legislation, for example, section 6 of the ICM Act, but this is actually of no consequence in that they must be read together, but where they conflict, the rules of statutory interpretation and case law must be applied in the interpretation thereof. The objects of the acts also differ and as such, so do the mandates of the different departments/organs of state administering them and the potential for conflict arises with regard to the mandates of DMR, DEA and DWA . This is particularly relevant when it comes to decision-making as to whether or not to allow any prohibited activities to be undertaken, for example unauthorized mining activities. Another interpretation issue is that it is



very difficult to determine what the mandate is where activities that primarily fall under one Act/department’s mandate, feature in other laws, for example, where mining is dealt with in the ICM Act, or activities involving water uses are also dealt with under NEMA.

There is a high potential for conflicts between the legislation in so far as the preparation and implementation of the various requisite plans and programmes are concerned, unless there is proper cooperative governance in the drafting of such plans, including:

- Estuarine Management Plans (ICM Act)- Environmental Management Plans (NEMA)- Environmental Management Programmes (NEMA & MPRDA)- Water Services Development Plans (WSA)- Disaster Management Plans (DMA)- Industry Waste Management Plans (NEMWA)

The Mountain Catchment Areas Act did not contain any sections of direct relevance to this study, but it is noted that mountain catchment areas are protected areas as defined in the PAA. According to section 16 of the PAA, only chapters 1 and 2 of the PAA apply to mountain catchment areas.

When reviewing NEMWA, all references to “environment”, which would include water resources, were reviewed but only those sections that directly referred to water resources.

Department of Agriculture requested a review on the possibility of conducting integrated river management in such a way as to avoid having to individually apply for authorisations for each and every maintenance intervention and for various “emergency activities”. After review of all the related possible means by which this might be achieved, the only viable option appears to be as follows:

Short of amending the legislation, each activity that triggers the requirement of obtaining some form of authorisation, such as the NEMA listed activities, or water use licence etc., still needs to be applied for. Therefore, it is proposed that each Water User Association (of which the farmers unions should be party to) would apply for the authorisations for the activities on a linear occurrence, for their reach of the river, for the various activities that are triggered in terms of the different legislation, but run the processes at the same time so as to try and dovetail them as much as possible. The idea would then be to obtain all the permissions from the various relevant Organs of State, but draft one Environmental Management Plan (EMP) that is signed off by all the aforesaid Organs of State. The EMP must clearly indicate exactly which activities have been authorised in terms of all of the different legislation and for how long. In this regard, it would be advisable for all the Organs of State concerned to apply the principles of cooperative governance and agree on a) timeframes within which to approve/refuse the applications, b) conditions they would like to have in the EMP, and c) agreement as to how long the approvals would be valid for. In addition, such Organs of State should also agree as to the exact process they require, and in some cases, maybe even agree that their own separate processes are not required. For example, in terms of section 22(3) of the NWA, the responsible authority may dispense with the requirement for a licence for a water use if it is satisfied that the purpose of the Act will be met by the grant of a licence, permit or other authorisation under any other law. Another example would be to try and get an integrated environmental authorisation for the above, in terms of section 24L of NEMA. This would then cover all the activities in NEMA and the SEMA’s (specific environmental management Acts) but exclude activities for example, under CARA or the NHRA.



In the case of emergency situations, such as flooding, these could also be covered under these types of applications and EMPs, for the activities that would be considered as being allowed to be undertaken in emergency situations without authorisation – unless of course they are already covered in the application for integrated river management, could be described in detail in the EMP.

Problem Areas

Section 27(2) of NEMWA refers to a “watercourse” but it is not defined.

In relation to waste management, the definitions of “industry” and “industrial use” in the NEMWA and WSA respectively, differ and refer to different activities Refer further to “Conflicts” under “Quality & Pollution” below.

Desalination is not specifically included in the definition of a “water resource”, or a “watercourse” in the NWA.

Groundwater, unlike surface water, is not specifically included in the definition of a “water resource”, or a “watercourse” in the NWA. Refer further to “Problem Areas” under “Quantity & Supply” below.

In terms of the old canals (e.g. lei-water) that were used to convey water to properties, some of which still exist today, it is not clear from the legislation who is responsible for them as their current purpose is also not clear. In some farming areas, such canals are still used for irrigation purposes, one could also argue that they would form part of storm water management systems, yet there is no clear indication in the legislation as to who is responsible for them and for ensuring that they are not polluted, thereby polluting the water resources into which they ultimately feed.

Aquaculture, which impacts on the quality of the water resource in which it takes place, is not covered in terms of the NWA per se. Where the aquaculture is located out of a watercourse, then the S21 listed activities apply, i.e. a water use where there is abstraction or diversion of water, and the subsequent discharge of water containing waste. However, where the aquaculture is contained within a watercourse itself, this aspect is not addressed in the NWA. It is however an activity listed under NEMA requiring an environmental authorisation.

Conflicts

NEMWA listed activities refer to “effluent” but do not define the term. The definition of effluent in the ICM Act differs substantially from the definition of effluent in the WSA, (R509, GG22355, 8 June 2001).

3.3.2 Quantity & Supply

In terms of the NHRA a permit is required to cover burial grounds for example, when constructing a dam, and certain related activities. These, for example include the construction of pipelines and canals longer than 300 metres which will trigger the heritage impact assessment provisions as discussed further in Authorisations and Licences below.

The Regulations in terms of the WSA relating to compulsory national standards and measures to conserve water, (R509, GG22355, 8 June 2001), contain several provisions dealing with quantity and supply. In particular, they deal with the use of effluent and the determination of water losses.



The MPRDA provides that the holder of rights under the MPRDA may use water from various resources, but that such use is still subject to the NWA.

Chapter 3 of the NWA deals with protection of water resources, and Part 3 in particular deals with the Reserve, which consists of two parts - the basic human needs reserve and the ecological reserve. The basic human needs reserve provides for the essential needs of individuals served by the water resource in question and includes water for drinking, for food preparation and for personal hygiene. The ecological reserve relates to the water required to protect the aquatic ecosystems of the water resource. The Reserve refers to both the quantity and quality of the water in the resource, and will vary depending on the class of the resource. The Minister is required to determine the Reserve for all or part of any significant water resource. If a resource has not yet been classified, a preliminary determination of the Reserve may be made and later superseded by a new one. Once the Reserve is determined for a water resource it is binding in the same way as the class and the resource quality objectives. Chapter 4 Part 4 dealing with stream flow reduction activities allows the Minister, after public consultation, to regulate land based activities which reduce stream flow, by declaring such activities to be stream flow reduction activities. Whether or not an activity is declared to be a stream flow reduction activity will depend on various factors, such as the extent of stream flow reduction, its duration, and its impact on any relevant water resource and on other water users. The control of the impact of forestry on water resources is exercised under this Part.

Chapter 5 of the NWA deals with the measures to finance the provision of water resource management services as well as financial and economic measures to support the implementation of strategies aimed at water resource protection, conservation of water and the beneficial use of water. In particular, Section 56(6) provides that in setting a pricing strategy, the Minister may consider incentives and disincentives to promote the efficient use and prevent the waste of water. Schedule 1 of the NWA deals with the permissible use of water and in particular refers to quantity in so far as reasonable domestic use is concerned, and also provides that a person may store and use run-off water. Section 6 of Schedule 3 determines that the catchment management agencies may temporarily control, limit or prohibit use of water during periods of water shortage.

The Regulations for the Establishment of the Classification System, 2010, (R810, GG33541, 17 September 2010), provide for a procedure for determining different classes of water resources and for determining the Reserve.

Problems Areas

The General Authorisation in terms of Section 39 of the NWA (GN.399, GG 26187, 26 March 2004), deals with the provisions of Section 21(a) of the NWA, i.e. the taking water from a water resource. The General Authorisation, however, includes provisions for the taking of groundwater. As mentioned above, groundwater is not specifically included in the definition of “water resource” in the NWA. Therefore the GA is trying to regulate the abstraction of groundwater, which is not included in the section 21 water uses, which refer to abstraction of water from a water resource – i.e. which excludes groundwater in the definition. In addition, the General Authorisation is not applicable to government water control areas, government water works, catchment control areas or irrigation districts as contemplated in the Water Act 1956.



3.3.3 Quality & Pollution

CARA defines “soil conservation work” as including any work that is constructed on land for the prevention of the silting of dams and the pollution of water, but that is not a work that is constructed on land in the course of prospecting or mining activities. Soil conservation works are dealt with in more detail in Section 12 of CARA.

Section 6 of the Regulations (1048, GG9238, 25 May 1984), deals with prevention of waterlogging and salination of irrigated land, and in particular, provides that a land user must take certain measures to protect the irrigated land on his farm unit effectively against waterlogging and salination, all of which would have an indirect effect on water quality and pollution.

The PAA Regulations, (Regulations for the proper administration of nature reserves, national parks & world heritage sites R1061, GG28181, 28 Oct 2005), which only apply to nature reserves, national parks and world heritage sites, contain various provisions relating to the protection of water resources against pollution. This includes a prohibition on the painting of vessels in water areas, the disposal of any solid or liquid waste into water areas, general prohibitions on littering in section 40, and specific provisions on the pollution of water in section 41. In addition, section 42 deals with the removal and dumping in a water area, and section 47 deals with French drains and pit latrines. The Regulations for the proper administration of the Knysna Protected Environment, (R1175, GG32797, 11 December 2009) also contain similar provisions. There are also provisions prohibiting pollution of freshwater bodies in Ordinance 19 of 1974. These provisions need to be read in conjunction with the NWA.

Section 21 of NEMWA contains a general requirement that the storage of waste must not pollute the environment. There are further provisions dealing with the duties of the persons carrying the waste to prevent spillage of such waste. Section 26 prohibits the unauthorised disposal of waste, and the disposal of waste in a manner that is likely to cause pollution. Remediation of contaminated land features prominently in this Act, although none of these provisions are yet in operation as at 1 March 2011.

The Regulations on the Use of Water for Mining and Related Activities aimed at the Protection of Water Resources, (R704, GG20119, 4 June 1999 in terms of the NWA), deal with measures relating to water resources in the context of mining and mining activities which cause or are likely to cause pollution of a water resource.

Sections 24P and 24R of NEMA deal with the financial provision for remediation of environmental damage in relation to mining, and therefore strengthens the similar provision in the MPRDA referred to above in relation to closure certificates.

Problem Areas

Storm water management systems in built-up areas are a function of municipalities in terms of Schedule 4, Part B of the Constitution. However, storm water from such built-up areas, which could be classified as water containing waste, is regularly discharged into rivers and water courses, thereby affecting the water quality of such water resources, yet no permit or licence is required by DWA in terms of the National Water Act for such discharge, though technically this would constitute a water use in terms of section 21(f) and (g) being “discharging waste or water containing waste into a water resource through a pipe, canal, sewer, sea outfall or other conduit ”. NWA Schedule 1 Permissible use of water, in terms of (1)(f) limits the discharge of (i) waste or water containing waste; or (ii) run-off water, including storm water from any residential,



recreational, commercial or industrial site, to “a canal, sea outfall or other conduit controlled by another person authorised to undertake the purification, treatment or disposal of waste or water containing waste, subject to the approval of the person controlling the canal, sea outfall or other conduit.” Storm water is usually discharged into water courses and no direct purification or treatment of such waste occurs.

Section 41 of the Mine Health and Safety Act 50 of 1991 was amended to read as follows:

“(1) The Regional Director: Mineral Development may issue directives and determine conditions in relation to the use of the surface of land comprising the subject of any prospecting permit or mining authorization or upon which a works is situated in order to limit any damage to or the disturbance of the surface, vegetation, environment or water sources to the minimum which is necessary for any prospecting or mining operations or processing of any mineral: Provided that such directives and conditions shall not be construed as placing the holder of any such prospecting permit or mining authorization or the owner of such works, as the case may be, in a better position vis-a-vis the owner of such land in relation to the use of the surface thereof”. The issuing of directives relating to the minimising of damage or disturbance to water sources must be done in terms of the NWA, as being the primary legislation for the management and protection of the State’s natural water resources, and NEMA for being the primary legislation for the management and protection of the environment.

Conflicts

Section 10 of the regulations in terms of the Haz Act, (Regulations under the Hazardous Substances Act R453, GG5467, 25 March 1977), provides that any empty containers of category B group 1 hazardous substances, must be perforated, flattened and buried in the ground. This refers to containers that contained poisonous, (toxic) substances listed in Appendices E and F in the SABS Code of Practice 0228. The Section does not require that they be disposed of at a licenced hazardous waste disposal site. This is clearly a conflict with the requirements of NEMWA that require a waste management licence in terms of section 20 thereof, for the disposal of any quantity of hazardous waste to land, (Category B Activity 9, R718, GG32368, 3 July 2009). Further, the disposal of hazardous material to the ground in an unconventional waste disposal site, could indirectly or directly affect a water resource.

Furthermore, section 16(1) of the Regulations relating to Group IV hazardous substances, (R247, GG14596, 26 February 1993), determines that where such substance has been released or dumped in such a way that it could cause contamination, the Director-General of the Department of Health must be notified and such notification must be followed up with a written report within 7 days. This provision is different to the provisions in Section 19 of the NWA, or Section 30 of NEMA in so far as both of them contain much more extensive obligations and constitute criminal offences where there is a failure to comply with directives issued in terms of thereof.

The ICM Act contains a number of provisions relating to estuary management, one of the objects of which would be to address the issues of pollution and water quality. As already indicated in this report, the potential for conflict arises with regard to the contents of all the different types of plans and programmes that are required under the different laws. The ICM Act also contains administrative enforcement provisions for the issuing of notices and directives, one of the aims of which would be to prevent or rehabilitate any adverse effects on the coastal environment, which, as defined in the Act includes estuaries, tidal rivers and coastal wetlands. Section 88 in particular, allows for an MEC to direct a municipality in writing, to take specified measures if the MEC is satisfied that the municipality is not taking adequate measures to prevent or remedy adverse effects on the coastal environment; adopt or implement a municipal coastal management



programme; or give effect to the provincial coastal management programme. The MEC may not however, issue such a directive without first consulting with the municipality and giving it a reasonable opportunity to make representations. If the municipality does not comply with a directive, the MEC may use any powers granted to the MEC under the ICM Act to take measures to prevent or remedy adverse effects on the coastal environment, to implement or monitor compliance with provincial norms and standards, or to give effect to the provincial coastal management programme.

Section 7 of the WSA prohibits the disposal of industrial effluent, without approval, in any manner other than by a Water Services Provider. In many instances the Water Services Provider is either a District or Local Municipality. Section 28 (Part 7 of Chapter 4) of the NEMWA may require an industry to generate an Industry Waste Management Plan. Section 29 excludes municipalities from compiling industry waste management plans, but includes a provincial department. The definition of waste in the NEMWA includes “all substances”. The problem is therefore that the Water Services Providers mostly being municipalities, are not compiling the industry waste management plans but are compiling waste management plans. It is therefore important that cooperative governance is followed in the compiling of the industry waste management plans seeing that the municipalities are excluded from having to compile such plans.

Section 9 of the WSA makes provision for the Minister to set national standards on the quality of water discharged into any water resource system. Section 7 of NEMWA makes provision for the Minister to set national norms and standards for the classification of waste, and the storage, treatment and disposal of waste. The definition of waste in the NEMWA includes “all substances”. It is therefore important that cooperate governance is followed in the determining of these standards.

The Regulations in terms of the WSA relating to compulsory national standards and measures to conserve water, (R509, GG22355, 8 June 2001), contain several provisions dealing with pollution. In particular, they deal with the disposal of grey water, the use of effluent and the quality of industrial effluent discharged into a sewerage system. Further, the NWA chapter 4 Part 5 deals with controlled activities, and this allows the Minister to regulate activities that may have a detrimental effect on water resources by declaring them to be controlled activities, for example, irrigating with wastewater. Similar to above, in some situations this may trigger the provisions of NEMWA and GN718, GG:32368, of 3 July 2009. The definition of waste in the NEMWA includes “all substances, whether or not that substance can be reduced, re-used, recycled and recovered-”. It is important that cooperative governance is followed regarding the issuing of these approvals.

Chapter 3 Part 2 of the NWA deals with the classification of water resources but in particular, with the quality of such resources, whereas Part 4 thereof deals with prevention of pollution of water resources. This includes administrative enforcement provisions – the Section19 directive that may be issued to cease and/or remediate pollution to a water resource. There is a potential for conflict here if proper cooperative governance procedures are not complied with, because of the fact that directives relating to the same set of facts may also be issued in terms of Section 31A of the ECA as well as sections 28 and 30 of NEMA, but also the section 59 coastal protection notice in terms of the ICM Act. Chapter 3 Part 5 of the NWA contains the directive in terms of Section 20 of the NWA, and this could also potentially conflict with other directives as stated above, but also even if both a Section 19, a Section 20 and Section 53 directive under the NWA are issued for the same set of facts.



Section 9 of the Regulations in terms of paragraph (A) to (J) of Section 138 of the Water Act of 1956, (R562, GG1721, 28 April 1697), determines the standards of purity of domestic water being supplied by a board. Section 11 thereof creates an offence for any person who wastes water under the control of a board or allows solid or liquid sewage or industrial or domestic effluent to contaminate water in any works under the control of a board or to contaminate any water within the catchment area under the control of a board or any other water under the control of a board. The requirements for the Purification of Waste Water or Effluent, (R991, GG9225, 18 May 1984 under the Water Act of 1956), also provide for quality standards for wastewater or effluent, and as at 8 July 2011, have not been repealed. They specifically stay in place in terms of section 163(4) of the NWA.

3.3.4 Demand & Efficiency

The NWA has several provisions dealing with demand and efficiency. In particular, Chapter 5 deals with the measures to finance the provision of water resource management services as well as financial and economic measures to support the implementation of strategies aimed at water resource protection, conservation of water and the beneficial use of water.

Chapter II of the WSA deals with standards and tariffs. Section 9(1)(c) specifically provides that the Minister may prescribe compulsory national standards which relates to the effective and sustainable use of water resources for water services.

Chapter III of the WSA deals with water services authorities and their obligation to compile a Water Services Development Plan, which must include the consideration of existing and proposed water conservation and recycling measures.

Chapter V of the WSA deals with water services intermediaries and Section 27 specifically provides that when water authorities monitor performance of water services providers and –intermediaries, standards and norms under Section 9 and 10 must be complied with. In this regard, refer to the remarks above on the provisions of section 9(1)(c) of the WSA.

NWA Section 80 further provides that one of the initial functions of the CMAs is to investigate and advise interested persons inter alia on the conservation of water resources, and to promote community participation also regarding the conservation of water resources. Schedule 3, section 6 of the NWA also provides that CMAs may temporarily control, limit or prohibit use of water during periods of water shortage.

Problem Areas

Section 30 (2)(f), in Chapter VI on water boards, provides that one of the activities of the Water Board may include performing water conservation functions and Section 34(1)(i) specifies that the Board must balance water demand and promote water conservation. In addition, in terms of Section 73(1)(j) the Minister may prescribe, by way of regulation, measures to be taken by water services institutions to conserve water. Some of the relevant subject matter dealt with under the regulations promulgated under the WSA, includes the disposal of grey water, determination of water losses and the repair of leaks (see Annexure A for details) taking Section 80 of NWA, mentioned above into account.



Sections 28-34 (Part 7 of Chapter 4) of NEMWA deals with industry waste management plans. Section 28(4)(b) specifies that the Minister or MEC must consider the amount of natural resources, which therefore includes water, that is used in the manufacturing or production processes that result in waste. The conflict regarding the Industry waste management plans and the NWA and WSA has already been mentioned in the section on Quality & Pollution above. Further, the WSA’s Water Services Development Plans must also be included in this process.

The WSA makes provision for regulations for measures to conserve water, e.g. GNR:509, GG22355, 8 June 2001. However, the NWA, which is the lead legislation on water resources utilisation and protection does not provide such regulations or measures relating to permissible or existing use of water.

3.3.5 Climate Change

There are no provisions dealing with climate change in any of the reviewed national legislation.

3.3.6 Emergency & Disaster

The CARA Regulations (R1048, GG9238, 25 May 1984), provide for a definition of “flood area” and in section 7 contain measures to prevent soil erosion in the event of floods. In terms of CARA, the Minister of Agriculture can make regulations dealing with specific flood relief provisions for certain magnitude of floods.

The Haz Act Regulations (Regulations relating to Group IV hazardous substances, R247, GG14596, 26 February 1993) contain provisions in section 16 dealing with accidents and incidents relating to radioactive material outside of a nuclear installation, inter alia, the dumping or causing of contamination by such substances.

Problem Areas

The MPRDA has emergency provisions allowing the Minister to issue a directive relating to urgent remedial measures to be taken by the holder of any mineral right where any mining operation causes damage to the environment in the wider sense, (pollution or ecological degradation). An EIA would be part of such measures, but this section does not take into account that before such directive is issued, that there is other legislation that might have to be complied with as well, prior to such remedial steps being undertaken, for example NEMA listed activities or NWA water use activities. Due to the provisions on co-operative governance, the execution of these directives should not be problematic if the proper consultation process is followed in terms of PAJA and the Constitution.

The WSA deals with emergencies and provides that the Minister of Water Affairs may provide water services in emergency situations. The definition of “emergency situation” (WSA) is different to the definition of “incident” both in the NWA and NEMA, in that it must be declared by the Minister as a disaster. There does not appear to be any conflict with these definitions due to the different objectives of the emergency provisions in NEMA, the NWA and the WSA.

There is no definition of “emergency situation” in the NWA or in NEMA.

Chapter 3 Protection of Water Resources, Part 5: Emergency incidents in the NWA make provision for emergencies relating to water resource pollution. There is no definition of “emergency” in the NWA or in NEMA. Both Acts however define “incident”. The NWA defines it as follows:



““incident” includes any incident or accident in which a substance - (a) pollutes or has the potential to pollute a water resource; or (b) has, or is likely to have, a detrimental effect on a water resource”

NEMA defines “incident” as “an unexpected sudden occurrence, including a major emission, fire or explosion leading to serious danger to the public or potentially serious pollution of or detriment to the environment, whether immediate or delayed”.

There does not appear to be a conflict between these definitions, which would allow both directives in terms of Section 20 of the NWA and Section 30 of NEMA to be issued simultaneously if necessary. However, the conflict could arise as to what is stipulated in such directives in terms of what the person(s) being directed, must do, and there is a difference as to who issues these directives. The issuing authorities must ensure that they consult with each other first to a) ensure that they do not issue conflicting directives, and b), not inadvertently contain a provision in such directives that would first require some form of authorisation from another department/Organ of State, without first consulting with such Organ of State. See further the discussion under Authorisations and Licences below.

Schedule 1 Permissible use of water: section 1(d) emergency situation (which is not defined, see above), in the NWA provides that water can be used in emergency situations, (for human consumption or firefighting in emergency situations) but would not appear to trigger a NEMA listed activity per se.

Conflicts

Section 67 of the NWA provides that in an emergency situation (which is not defined, see above), or in cases of extreme urgency involving the safety of humans or property or the protection of a water resource or the environment, the Minister may dispense with the requirements of the NWA relating to prior publication or to obtaining and considering public comment before any instrument contemplated in section 158 (1) of the NWA is made or issued. This includes the issuing of any directives, including an urgent directive in terms of Section 20 of the NWA, and the provisions that may be disregarded, including provisions as to public participation as well as any time periods that may be required. In effect, Section 67 allows the Minister to authorise the authority issuing an emergency directive to dispense with the requirements for public participation. NEMA’s emergency directive does not explicitly allow for these requirements to be dispensed with but does provide that it is a defence to an offence under Section 24F if a listed activity was undertaken without an environmental authorisation if it was undertaken in response to an emergency, so as to protect human life, property or the environment. If read with PAJA, there would still have to be some form of public participation even after an urgent directive is issued. It would be subjective interpretation whether Section 67 of the NWA doesn’t conflict with PAJA - which was promulgated after the NWA. The same conflict would arise with the provisions of NEMA in so far as Section 110 of the NWA is concerned which provides that in emergency situations, consultation can be disposed of as well as all other requirements in terms of the NWA if a waterworks is constructed which is temporary or minor. This would also conflict with the requirements of NEMWA for the same reason.

Regulations in terms of Section 9c (6) of The Water Act, 1956, Relating to Dams with a Safety Risk, (R1650, GG10366, 25 July 1986), provide that “the owner or other person in control of a



dam with a safety risk shall as soon as a condition affecting the safety of a dam arises at the dam, investigate, or cause to be investigated and evaluate the circumstances and without delay take such steps as are necessary to clear up or control the condition…”. This could conflict with the provisions of NEMA, requiring an environmental authorisation for certain listed activities that could be triggered, but also the NHRA which states that any structure older than 60 years requires authorisation prior to any alteration or demolition thereof.

The whole of the DMA is relevant, and makes provision inter alia for disaster management frameworks, disaster management plans and strategies to be drafted, the contents of which could potentially conflict with the requirements of, for example NEMA, if a listed activity needs to be undertaken urgently without an EIA, because as stated above, as NEMA does not make provision for the undertaking of listed activities in emergency situations.

However, section 2(b) states that the DMA does not apply inter alia “ to an occurrence falling within the definition of “disaster” in section 1”. The implication is therefore that if water-related disasters do occur or threaten to occur and can be dealt with effectively with the existing legislation excluding the DMA, that the DMA does not need to be brought into play. Section 1 of the DMA defines “disaster” as “a progressive or sudden, widespread or localised, natural or human-caused occurrence which-

(a) causes or threatens to cause-(i) death, injury or disease; (ii) damage to property, infrastructure or the environment; or

(iii) disruption of the life of a community; and(b) is of a magnitude that exceeds the ability of those affected by the disaster to cope with its

effects using only their own resources…to the extent that that occurrence can be dealt with effectively in terms of other national legislation-(i) aimed at reducing the risk, and addressing the consequences, of occurrences of that

nature: and (ii) identified by the Minister by notice in the Gazette.

3.3.7 Planning & Land Use

There do not appear to be any conflicts regarding the PAA, but a general observation is that the PAA could be used to protect certain water resources or ecosystems, by declaring protected areas, as long as all the other requirements for the declaration of a protected area are met. The regulations under the PAA that apply to special nature reserves, national parks and world heritage sites contain various provisions allowing for SANParks to manage and control water areas. However, this would not exclude the applicability of any other national legislation dealing with water resource management. It should be noted however that no provincial legislation or bylaws would apply within national parks.

Section 64 of the NWA provides for expropriation of property for the purposes contemplated in the Act.

Problem Areas

Section 7(1) of the CARA Regulations (R1048, GG9238 of 25 May 1984), deals with the utilisation and protection of vleis, marshes, water sponges and water courses, and states that



“subject to the provisions of the Water Act of 1956, no land user shall utilise the vegetation in a vlei, marsh or watersponge or within the flood area of a water course or within 10 metres horizontally outside such flood area in a manner that causes or may cause the deterioration of or damage to the natural agricultural resources.” While this provision is clearly intended to avoid conflict between CARA and the NWA, it still refers to the Water Act of 1956 and not the NWA. Section 8 of these regulations contains a similar provision regarding the flow pattern of run-off water and also refers to the Water Act of 1956 and not the NWA. There is however, no definition in CARA for “water sources”.

The ICM Act contains provisions relating to the drafting and implementation of estuarine management plans. The comment here is the same with regard to any of the other plans or programmes that are required under the different laws as set out in the table, in that the contents of these plans could conflict if proper cooperative governance is not undertaken in the drafting and review of such plans. In addition, Sections 56 and 57 of the ICM Act provide for planning schemes for areas within the coastal zone, the definition of which includes “coastal waters” and “coastal wetlands”. These schemes must also undergo proper cooperative governance procedures when they are drafted so as to ensure that they do not conflict with any other planning schemes required under different legislation. Furthermore, section 62 requires that an Organ of State may not authorise land in the coastal protection zone to be used for any activity that may have an adverse effect on the coastal environment without first considering an EIA. Sections 65 and 95 deal with coastal leases and concessions, but neither were in effect as at 18 July 2011, the time this report was drafted.

Part 7 of Chapter 4 of NEMWA requires the preparation of industry waste management plans. Again, the comments here are the same with regard to any of the other plans or programmes that need to be drafted and implemented in terms of the different laws, in that there is a potential for conflicts if proper cooperative governance procedures are not followed. The WSA similarly requires water services development plans and NEMA requires environmental management plans and environmental implementation plans, and the same comments apply.

Gaps

CARA, which does not apply to land that is situated in an urban area1, also refers to storm water but uses the term “run-off water”. CARA defines a “water course” as meaning “... a natural flow path in which run-off water is concentrated and along which it is carried away”. In section 6 of CARA, the Minister may prescribe control measures that shall be complied with by land users to whom they apply. Such control measures may relate inter alia to “the regulating of the flow pattern of run-off water”. “Run-off water” is defined in the Regulations under CARA as meaning excess surface water resulting from rain”. The Minister has prescribed the following control measure relating to the regulating of the flow pattern of run-off water:

“8. Regulating of the flow pattern of run-off water

(1) Subject to the provisions of the Water Act, 1956 (Act 54 of 1956), no land user shall in any manner whatsoever divert any run-off water from a water course on his farm unit to any other water course, except on authority of a written permission by the executive officer.

(2) The provisions of sub-regulation (1) shall not apply in respect of run-off water that is diverted from one water course to another in terms of the provisions of a water run-off control plan approved by the Department.

1 See section 2 of CARA and Constitutional Court Case 78 of 2007, Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & Others.



(3) The provisions of regulation 2 (2) and (3) shall apply mutatis mutandis with regard to an application for a permission referred to in sub-regulation (1).

(4) No land user shall effect an obstruction that will disturb the natural flow pattern of run-off water on his farm unit or permit the creation of such obstruction unless the provision for the collection, passing through and flowing away of run-off water through, around or along that obstruction is sufficient to ensure that it will not be a cause for excessive soil loss due to erosion through the action of water or the deterioration of the natural agricultural resources.

(5) No land user shall remove or alter an obstruction in the natural flow pattern of run-off water on his farm unit if such removal or alteration will result in excessive soil loss due to erosion through the action of water or the deterioration of the natural agricultural resources.”

However, this control measure only applies to run-off water from a water course, and not storm water in general. It is therefore clear from the above, and previous sections, that there is a gap in the legislation in so far as storm water management is concerned. In summary: in terms of the Constitution, storm water management is only a function of municipalities in “built-up areas” and not rural areas. CARA only applies to run-off water from a water course, and the fact that storm water may pollute water resources is not dealt with at all. The by-laws only deal with pollution of the storm water itself but not of the water resources that such storm water may be discharged into.

3.3.8 Authorisations & Licences

The NHRA contains certain activities that could affect water resources. Some dams may be older than 60 years, in which case any upgrading or construction related thereto would require a permit for demolition or substantial alterations. The construction of dams could also affect burial grounds or graves when flooded, and this would require permission in terms of Section 36 of the NHRA. Section 38 provides that pipelines and canals (linear developments) of more than 300 metres in length will also trigger an HIA.

In terms of the ECA, there are still a number of listed activities identified in the OSCA and OSCA Ext Regulations, prohibiting certain activities within certain defined cadastral boundaries, mainly in the Southern Cape. These activities also require EIA’s but the procedures are different to the current NEMA EIA Regulations. Because of the fact that most of these areas fell within the Lakes Area Development Act, (Act 39 of 1975), most of these listed activities fall within estuaries, rivers and lagoons which is now within the ambit of the ICM Act.

In addition to the water use licences required in terms of the NWA, Chapter 4 Part 5 of the NWA also deals with controlled activities, and this allows the Minister of Water Affairs to regulate activities that may have a detrimental effect of water resources by declaring them to be controlled activities, for example, irrigating with wastewater.

Problem Areas

The authorised use of water including groundwater, that was being utilised during a period of two years prior to the commencement of the NWA, is deemed to be an existing lawful use in terms of Section 32 of the NWA. However, any additional use of groundwater, that does not fall within the ambit of Schedule 1 of NWA, would have to be authorised – and this would include authorised use that was not utilised during the two year period.

The Water Act of 1956 declared areas as subterranean government water control areas. Authorisations issued for the use of subterranean water within these areas, are considered



existing lawful uses in terms of the NWA (see bullet above). The Water Act of 1956, further declared some government water control areas as Irrigation Districts and provided for the establishment of Irrigation Boards or Water Control Boards whose function included inter alia to prevent any unlawful abstraction or storage of subterranean water. Section 98 of the NWA makes provision for the conversion of these Irrigation Boards and Water Control Boards into Water User Associations in terms of the NWA. To date only 38 WUAs have been established in the Western Cape, including new Associations and conversion of old Irrigation Boards.

The General Authorisation in terms of Section 39 of the NWA, (GN399, GG 26187, 26 March 2004), relates to the taking water from a water resource, S21(a)of NWA. The General Authorisation includes the taking of groundwater. The General Authorisation does not apply to government water control areas, government water works, catchment control areas or irrigation districts as contemplated in the Water Act 1956. Therefore, use of groundwater that was not utilised during the period of two years prior to the commencement of the NWA, is subject to section 21(a) licensing for taking water from a water resource. Although, as mentioned above, groundwater is not specifically included in the definition of water resource in the NWA.

Conflicts

There are a number of authorisations and licences that apply to water resource management, (refer to Annexure A for the specific provisions), such as:

1. The undertaking of listed activities in terms of NEMA

2. Water use licences and general authorisations in terms of the NWA (including existing lawful use)

3. Waste management licences under the NEMWA

4. Control measures in terms of CARA

5. Existing authorisations issued under the ECA

6. Mining and related permits and licences under the MPRDA

7. Authorisations required in terms of the PAA or in protected areas

8. Activities under section 38 of the NHRA

9. Authorisations and permits under the ICM Act

10. Authorisations in terms of the WSA

11. Further requirements under the Water Act of 1956

All of the above must be obtained if whatever the activity is that is being undertaken, triggers any of the applicable legislation above – for e.g. if a water use licence is obtained under the NWA to alter the beds, banks or characteristics of a watercourse, then an environmental authorisation in terms of Section 24 of NEMA will also be required.

The potential for conflicts arising in the issuing of approvals is very high, if there is no proper co-operative governance, and where there are different processes that need to be followed to obtain such approvals. The most significant problem is that each Organ of State has a different mandate. Another issue is that there is no uniform database that captures all the approvals spatially so the potential for issuing overlapping approvals on cadastral boundaries with conflicting conditions is also significant. This in fact, occurred on previous occasions. For example



in the Western Cape there was a previous case in which conflicting records of decision were issued for similar properties situated adjacent to each other, and both situated on a riverbank.

Problems arising in NEMA authorisations in relation to emergency situations have been discussed in the section of this chapter on Emergency & Disaster.

3.3.9 Public Participation

Public participation is defined as including consultation with other Organs of State. In almost all legislation referring to the granting of authorisations, the drafting of plans or programmes, and the taking of administrative actions, (e.g. issuing of directives), there are requirements for public participation and consultation between Organs of State. There does not appear to be conflict except in so far as emergency situations are concerned. This can be referred to in the previous discussion on Emergency and Disaster.

The timeframes for public participation between the NWA and the NEMA, 60 and 45 days respectively, is not viewed as a conflict, as the authorising Departments should be guided by cooperative governance in their decision-making.

3.3.10 Enforcement & Offences

Problem Areas

The NWA does not specify maximum fines, but only maximum periods of imprisonment. This has the effect that the AFA will find application and that for each year of imprisonment allowed, a corresponding fine of R20 000,00 will apply. This means that the maximum imprisonment in section 151(2) of the NWA set at 5 years for a first conviction, only allows for a maximum fine of R100 000,00. In the case of a second or subsequent conviction, where the maximum period of imprisonment is set at 10 years, the maximum fine will be R200 000,00. If compared to the maximum fines set in NEMA and the other SEMAs (many of which were recently increased), these fines are totally inadequate to serve as an effective deterrent. Similarly, the maximum fines set in terms of section 23 of CARA, depending on the contravention concerned, are between R500,00, R5000,00 or R10 000,00. Due to the effect of the AFA, these fines can be adapted as follows: The R500, 00 fine is linked to imprisonment of 3 months, and can therefore be increased to R5000, 00, the R5000, 00 fine is linked to imprisonment of 2 years, and can therefore be increased to R40 000,00, and the R10 000, 00 fine is linked to imprisonment of 4 years, and can therefore be increased to R80 000,00. In spite of these increases due to the effect of the AFA, these fines remain woefully inadequate. The WSA does not specify a maximum penalty, but only specifies a “fine and/or imprisonment” (see section 82(2)).

Of further revelance to criminal enforcement is the fact that magistrate’s courts are usually limited to a fine of R60 000,00, and regional courts to a fine of R300 000,00, unless the specific Act allows for extended penalty jurisdiction for such courts. Section 34H of NEMA provides for extended penalty jurisdiction for both NEMA and the SEMAs (which includes the NWA), as is the case with some of the other acts referred to, such as section 23(2) of CARA. Some of the other Acts, such as the WSA, do not contain such a provision. While none of the above leads to any direct conflicts, the penalties are not always proportionate and the other provisions referred to above are inconsistent.

Another issue relevant to criminal enforcement are the provisions of supplementary orders on conviction, which include the orders contained in sections 34(1)-(4) of NEMA, and particularly in relation to similar, but not identical, orders contained in section 152 and 153 of the NWA. Section



34 of NEMA provides for summary supplementary orders on conviction for the costs of investigation, prosecution, loss or damage, including the cost of rehabilitation, and even compensation or a supplementary fine to the value of any advantage gained by the accused following on a conviction of the offences listed in Schedule 3. Of particular relevance is the fact that the contravention of Sections 151(1)(i) and (j) of the NWA is listed in Schedule 3, as these additional orders will therefore be available where a person is convicted of these offences. Section 152 and 153 of the NWA however also provides for a court, on conviction of a person for any offence under the NWA, to make an award of damages for loss or harm, order the accused to pay the cost of remedial measures or order that remedial measures be implemented. While these provisions are similar, they are not identical and both will be available where a person is convicted of the contravention of Section 151(1)(i) or (j) of the NWA. This should however, not necessarily be highlighted as a conflict, as both can potentially apply.

Linked to the above discussion, fines issued by the courts, excluding supplementary orders, are paid to the Department of Treasury, which then contributes to State coffers for State use. The fines are not paid to the relevant Departments who are then responsible for the rehabilitation or remediation works, especially in relation to Acts such as CARA and WSA which are not SEMAs of NEMA or don’t include supplementary orders.

Further, supplementary orders should not be issued in lieu of conviction penalties.

In terms of administrative enforcement, there are a number of different directives and notices that can be issued simultaneously by different Organs of State. The potential for conflict arises in that without proper consultation and cooperative governance, there could potentially be conflicting provisions in such directives or notices, or they could direct a person to undertake an activity within a specific period of time without allowing for the fact that such activity might require authorisation in terms of another Act and that, for example an EIA needs to be undertaken first.

Conflicts

All the acts listed bind the State, except that ECA (see section 40), NEMA (see section 48) and the MPRDA (See section 109) exclude criminal liability for the state. This means that no Organ of State can be prosecuted for a contravention of provisions of ECA, NEMA and the MPRDA. Neither the NWA (see Section 156) nor the WSA (see section 83) excludes criminal liability of the State.

The taking of enforcement action against Organs of State is a contentious issue, though guidelines in this regard have been drafted for the Environmental Management Inspectorate. The first concern here is to what extent can, and should, Organs of the State be charged criminally.

Section 41 of the Constitution determines that all role-players within government and Organs of State must adhere to the principle of cooperative governance by, amongst other things:

o co-operating with one another in mutual trust and good faith;

o informing one another of, and consulting one another on, matters of common interest;

o co-ordinating their actions and legislation with one another; and

o avoiding legal proceedings against one another.

This subject is particularly relevant in the context of prosecution of local authorities and parastatals, some of which will fall under the definition of Organ of State as defined in section 239 of the Constitution:



(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution -(i) exercising a power or performing a function in terms of the Constitution or a

provincial constitution; or(ii) exercising a public power or performing a public function in terms of any legislation,

but does not include a court or a judicial officer.

Section 41(1)(d) provides that all spheres of government and all organs of state within each sphere must be loyal to the Constitution, the Republic and its people. Implicit in this provision is the Constitution’s commitment to the rule of law and legality, as set out more explicitly in Section 1 of the Constitution.

Section 41(1)(e) provides that all spheres of government and all Organs of State within each sphere must respect the constitutional status, institutions, powers and functions of government in the other spheres. This provision reinforces the notion that even though the different spheres of government are to co-operate and consult each other, ultimately they are all distinct entities.

Section 41(1)(h)(vi) is of specific relevance here: All spheres of government and all organs of state within each sphere must co-operate with one another in mutual trust and good faith by avoiding legal proceedings against one another (emphasis added). This is reinforced by 41(3) which requires intergovernmental disputes be settled by the provided mechanisms and procedures and require that all such remedies must be exhausted before such a party approaches the court. A court may, in terms of section 41(4), refer a dispute back to the Organs of State involved if it is not satisfied that the requirements in section 41(3) were met. The IGRFA, which was enacted in terms of the obligation in this regard embodied in the Constitution, determines that Organs of State may not institute “judicial proceedings in order to settle intergovernmental disputes” (Section 45 of the Act ) unless certain detailed prescriptions have been adhered to. The Act is however silent on the issue of criminal prosecution. An intergovernmental dispute is defined in section 1 of IGRFA as:

“a dispute between different governments or between organs of state from different governments concerning a matter-(a) arising from-

(i) a statutory power or function assigned to any of the parties; or(ii) an agreement between the parties regarding the implementation of a statutory

power or function; and(c) which is justiciable in a court of law, and includes any dispute between the parties

regarding a related matter.

The term legal proceedings in section 41(1)(h)(vi) is not defined, and there is a difference of opinion on whether this was meant to, and indeed does, include criminal prosecution, while it will clearly include civil litigation. One can argue that the literal meaning would include criminal prosecutions. On the other hand a criminal prosecution cannot be described as a dispute as is referred to in section 41(3), although the NPA clearly falls within the definition of an Organ of State. It can further be argued that while in particular situations the spirit of co-operative governance might dictate that criminal prosecution of an Organ of the State should be avoided if there are other suitable alternatives, the principle that everyone, which will include juristic persons, is equal before the law (Section 9(1) of the Constitution) should also be taken into



account. Section 8(1) prescribes that the Bill of Rights also applies to all Organs of the State, and Section 8 (2) determines that it also binds a juristic person. All persons, including juristic persons, are equal before the law, and it can be argued that Organs of the state must in no way be given preferential treatment when it comes to decisions to prosecute or not. Loyalty to the Constitution, and respect for the different functions (in this case referring to the function of the NPA), as is provided for in Section 41(1)(d) and (e) respectively, should be the overriding factors.

Alternatively, a very important factor that might dictate against prosecution of an Organ of State, is the fact that such institutions are public institutions that are being financed by public funds. The public therefore indirectly pays the costs of defending such a prosecution, and a possible fine or other orders at conviction, will again be borne by the public, very often the same people who are the victims of such offences. It is probably this factor that is the basis of the idea of “crown immunity”, which lies in the maxim that ‘the King can do no wrong’, to be found in English Law. It was noted above that NEMA, ECA and the MPRDA is binding on the State except in so far a criminal liability is concerned. Section 156 of the NWA simply states that “[t]his Act binds all Organs of State”.

It should be emphasized that there is no prohibition on such legal proceedings against Organs of State, but simply a duty to avoid such legal proceedings.

As far as the taking of administrative enforcement actions against Organs of State are concerned, the taking of “legal proceedings” does not seem to include the taking of such measures, nor can such measures be described as “intergovernmental disputes”. Practical considerations and acting in the spirit of co-operative governance however dictates a less confrontational approach in dealing with non-compliant Organs of State.

The provisions contained in NEMA Section 34(5) to (10) and the similar, but not identical, orders in Section 154 of the NWA in relation to the criminal liability of employers, managers, agents, employees and directors, or in the case of NEMA employers, principals, employees and agents. Both of these provisions will apply where a person is convicted of the contravention of Section 151(1)(i) or (j) of the NWA, as these offences are listed in Schedule 3. Due to the difference in the wording, there is scope for conflict between these provisions.

3.4 CONFLICTS WITHIN THE MUNICIPAL BYLAWS

3.4.1 General Comments

This review excluded the Stellenbosch and Matzikama municipal bylaws as they were not made available in time to be considered.

Most local municipalities have a bylaw commonly called “Water Supply, Sanitation Services and Industrial Effluent”. These bylaws have similar content as they are all based on the DWA guideline, but the degree of detail varies substantially, as does the arrangement of sections. For example, some municipalities have this bylaw containing 50 to 60 sections, whilst the longest of all, in Oudtshoorn LM, contains 147 sections.

The industrial effluent bylaw tends to be on the side of more thorough than not, with some areas, such as Prince Albert LM, containing detail on industrial effluent disposal for example, that may never be needed. The concern with such detail, is that the few key areas which are important, for example water restrictions and efficiency, may be lost in the technical details for topics that are insignificant, such as the example made above, in a more rural area.



One area of the industrial effluent bylaw that may need adjustment is the stipulation that all water supply must be from the municipality, whilst in rural areas, many users are responsible for sourcing their own water, from springs, boreholes or rainwater tanks, despite falling within municipal jurisdiction.

Swartland LM appears to be using some very old bylaws with various amendments and additions. These generally contain essential provisions. However, extensive design details are present, as are some rather onerous application and notification procedures for new installations.

There are several other bylaws that have some bearing on water. In particular, a storm water bylaw, that was made available by only some municipalities. There is substantial overlap between the stipulations in this bylaw and the `Water Supply` bylaw, for example, separation of sewer and storm water flows and protection of the systems. A detailed analysis may reveal that those municipalities with the storm water bylaw have simply separated out such sections from the Water Supply bylaw and created a separate bylaw and hence the shorter sections in the ‘Water Supply’ bylaw.

There are some boating bylaws, such as for Botrivier in Overstrand LM, and the Clanwilliam Dam in Cederberg LM, but the majority of these deal with recreational and licensing issues. Minor points on pollution prevention are present.

Other bylaws, such as those relating to streets, public amenities and commonage, contain minor mention of issues related to water. These mostly relate to pollution prevention.

3.4.2 Quantity & Supply

These bylaws primarily address:o designs and specifications for materials and constructiono connections to potable water supplyo connections to the sewer systemo limitations to supply and level of serviceo metering and measuringo calculation of quantities and usageo fire systemso hydrantso boreholes.

The sections under this heading relate very closely to authorisations, as most new services can only occur when applications are made.

3.4.3 Quality & Pollution

These sections address:o pollution preventiono prohibited dischargeso industrial effluent disposal standards.

There is little variation between bylaws on the main sections, although a detailed analysis may reveal discrepancies in the actual industrial effluent disposal standards. These standards are usually in a schedule, but in many cases have been found to be unspecified or not attached to the bylaws.



Further, it was found that the storm water bylaw contains a provision allowing the municipality to dispose of storm water into any watercourse, and this contravenes the NWA (S21(f) and (g)) and NEMA (S28) regarding pollution prevention, use of water and duty of care, respectively, depending on the quality of the storm water.

3.4.4 Demand & Efficiency

This topic included:o differentiation of user typeso actual conservation measureso prohibition of water wastageo allowance to draft restrictions.

The degree of detail and substance in this topic varied greatly. Certain municipalities had clear details on what was allowed or not, such as City of Cape Town MM, Overstrand LM, Bitou LM, whilst others had some detail, such as Kannaland LM, Knysna LM, other had minor details, such as Langeberg LM, Drakenstein LM, Oudtshoorn LM, Cape Agulhas LM and Swartland LM. The rest simply make use of the standard clauses. The variation in details suggests no overarching or guiding document or regional/provincial strategy for this topic.

The various municipal strategies on Water Conservation and Demand Management are reviewed and commented on in the Chapter on Water Availability in the Status Quo Report.

3.4.5 Climate Change

No sections in the bylaws related directly to this topic.

3.4.6 Emergency & Disaster

Despite emergency and disaster management being a function of the municipality, there are very few items covered in the bylaws that were reviewed. These included:

o rights of municipalitieso duties of the public.

3.4.7 Planning & Land Use

Sections under this topic include:o protection of sewer and fresh water systemso systems in private or public spaceso servitudeso municipal rights and dutieso private duties.

These topics largely deal with the location of municipal infrastructure existing in or under public or private land and as such are primarily land use issues. The location of infrastructure within watercourses is a regular practice and locating of such infrastructure requires both NWA and NEMA authorisations, and potentially also NHRA and CARA authorisation. No mention of the reasonable location of infrastructure within watercourses in order to minimise impact to the natural environment is made.



3.4.8 Authorisations & Licences

This section deals with:o applications for potable watero applications for on-site sanitationo applications for new sewer connectionso applications for industrial effluent dischargeo applications for grey water systemso applications for road haulage of sewerageo withdrawal of applicationso changes to applicationso approvals for designs or fixtures/fittingso fees, deposits and chargeso agreements.

The sections under this topic are closely related to the Quantity and Supply theme. The necessity of making an application to use grey water (both for large scale and household use) could be seen as making water recycling and water efficiency more difficult, depending on the application process.

3.4.9 Public Participation

In the legislation reviewed, there were no specific sections that contained any detail on this theme.

3.4.10 Enforcement & Offences

Sections reviewed under this theme covered:o offenceso penalties and fineso noticeso cost recoveryo powers of the municipalityo duties of the publico need to be complianto supply of informationo interferenceo obstructiono prohibition on non-municipal connectionso no resale of watero exemptionso appealso repeal and other administrative items.

Municipalities should be required to report on this topic and these sections specifically, in order to address water resource management and water use regulation in a holistic and integrated manner.



3.5 GAP SYNTHESIS AND RECOMMENDATIONS

3.5.1 Conflicts in National Legislation

There are three main areas of the National legislation where existing and potential problems and conflicts surfaced:

1. Definitions: in many instances the problems or conflicts were located in the wording of, or in the inclusion/exclusion of activities from definitions in the Acts, e.g. Groundwater excluded from a water resource in the National Water Act.

2. Plans : many of the Acts require the submission and authorising of various plans (e.g. Water Service Development Plan, Environmental Management Plans, Industry Waste Management Plans, etc.). The content of which overlaps both across the plans, as well as across the ambits of various legislation. If the plans are not compiled, reviewed and authorised in an integrated and cooperative manner, the potential for conflicts arises.

3. Directives : similarly, several directives in terms of several pieces of legislation can be issued for the same set of facts for an offense. These directives may instruct different activities, which in turn may have implications under other legislation, e.g. a set of mitigating actions in directive in terms of the National Water Act may require EIA authorisation in terms of the NEMA prior to being carried out. Similar to the plans above, enforcement measures must be done cooperatively between Organs of State.

Recommendations

1. A legislative review is being commenced by the Department of Water Affairs to update the National Water. The conflicts, gaps and problem areas identified in this review should be submitted towards that project to help identify the problems requiring addressing in the amending of the Act.

2. Where plans fall on the Provincial sphere of competency, discussions between the relevant implementing Departments regarding and MoU should be held. The MoU should look at the integrating (not just coordinating), the various over lapping plans, such that one plan can be generated but addresses all the requirements of the various statues. The plans should be reviewed and approved cooperatively by the Government Departments. Likewise, monitoring against the plans can happen cooperatively.

3. The current Masibambane III Project that is drafting a National Compliance and Enforcement Strategy for the National Department of Water Affairs must address the issue of conflicting/overlapping directives. This may include, identifying the specific actions that would require authorisation under other statutes, or developing a MoU with those particular Departments to enable cooperative enforcement, such that each piece of legislation is addressed and enforced per case. This may be carried out at the Provincial and Regional office levels as well, but must not conflict with the National Strategy.

3.5.2 Criminal liability of the State

The issue of statues being binding on the State, including/excluding criminal liability, poses a real obstacle to the regulation and sustainable management of the natural and especially water resources both of the province and the State as a whole. In many instances, various Organs of State are the culprits of illegal or non-compliant activities leading to severe and detrimental impacts to the water resources. This will be highlighted in subsequent chapters of this Report.



Recommendations

The NEMA makes provision for enforcement against particular individuals of an offending organisation and thus not limited to the organisation as a whole. This should be applied to Organs of State as well. I.e. The relevant Organ of State can be charged with criminal liability, but as highlighted this impacts on the tax-payer to foot the fine. The relevant official, e.g. Municipal Manager, etc., should also be charged with criminal liability as the decision maker for failing to comply with legislative requirements. This will have a two-fold purpose, firstly, it will increase the priority of non-compliance among Organs of State that hide behind the blanket of “cooperative governance”, and secondly, it will increase the priority of compliance in the Water sector, against other legislation such as the PFMA of MFMA.

3.5.3 Land use versus Resource Management

Environmental resource management is a function of National and Provincial Departments, however land use management is a function of the municipalities and the bylaws include no provision for “reasonable use” in order to minimise impacts to natural resources. There is limited provision regarding construction in floodlines and wetlands, etc.

3.5.4 By-law Enforcement

How the actual (physical) regulation of the Municipal bylaws (relating to water, as reviewed above) is carried out, was not included in this review. Regulation of these bylaws should not be carried out in isolated enforcement, but should rather be integrated with environmental health and resource management. Further, no sections of the bylaws addressed the necessary staff or training required to implement the bylaws.

Recommendations

Regulators should attend Environmental Management Inspectorate (EMI) training, although the powers of EMI do not cover the ambit of municipal bylaws, the training provides a holistic approach to natural resources management. The regulators will need to attend EMI training anyway, in order to monitor the Air Quality Act.


Documents

LEGISLATIVE REVIEW - Western Cape€¦ · Web viewLEGISLATIVE REVIEW INTRODUCTION This legislative review of conflicts and gaps was done by creating a table (included in Annexure