Author: Gary Moore

Date: 17 December 2018

The National Water Act, 1998[1] states that it is an Act to provide for fundamental reform of the law relating to water resources.[2]

The Act’s provisions envisage the making by the Minister[3] of measures of various kinds, each requiring public consultation, and each supported by guiding provisions which purportedly restrict the Minister’s discretions i.r.o. the different measures.

But the overall cumulative effect of the Act’s provisions, read with all these measures by the Minister, is that control of the use of water resources is vested in the Minister:

Indeed, the Act declares that as public trustee of the nation’s water resources the national government “acting through the Minister” must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all.[4]

“[T]he Minister is ultimately responsible [for] ensur[ing] that water is allocated equitably and used beneficially “in the public interest”, while promoting environmental values.[5]

The national government “acting through the Minister” has “the power to regulate the use, flow and control of all water” in the Republic.[6]

The Act states that the Minister must[7] establish a national water resource strategy.[8]

The national water resource strategy must set out the “strategies, objectives, plans,” guidelines and procedures of the Minister and institutional arrangements relating to the “protection, use, development, conservation, management and control” of water resources “within the framework of existing relevant government policy” in order to achieve[9] the purpose of the Act;[10] provide for “actions to be taken to meet projected future water needs” and “water use of strategic importance”;[11] establish water management areas and determine their boundaries;[12] “contain estimates of present and future water requirements; state “the total quantity of water available” within each water management area;[13] “state the objectives in respect of water quality to be achieved through the classification system for water resources” provided for in the Act;[14] and contain “objectives for the establishment of institutions to undertake water resource management”.[15]

Before establishing a national water resource strategy or any component of it, the Minister must by notice in the Gazette set out a summary of the proposed strategy or component, state where the proposed strategy or component is available for inspection; and invite written comments to be submitted to a specified address by a specified date.[16] (The Minister must also take such further steps, if any, which the Minister considers to be appropriate to bring the contents of the notice to the attention of interested persons.[17])

The Minister has established such a national water resource strategy.[18]

The Act stipulates that water resources must be “protected, used, developed, conserved, managed and controlled” in accordance with the national water resource strategy.[19]

These provisions[20] mean that the Act ultimately delegates to the Minister the power to determine how water resources should be used.

These provisions are supported by others to similar effect:

Thus, the Act requires the Minister to prescribe a system for classifying water resources. This system may establish guidelines and procedures for determining different classes of water resources; in respect of each class, set out water uses for instream or land-based activities which must be “regulated or prohibited” in order to protect the water resource; and provide for such other matters relating to the protection, use, development, conservation, management and control of water resources “as the Minister considers necessary”.[21]

The Minister must then determine for every significant water resource[22] a class in accordance with the prescribed classification system, and resource-quality objectives based on the class determined.[23]

Before determining the class of a water resource or its quality objectives, the Minister must, in respect of each water resource, invite public comment on the proposed class or resource-quality objectives.

As soon as reasonably practicable after the class of a water resource has been determined, the Minister must[24] determine the Reserve for all or part of that water resource.[25]

(The Act states that the Reserve for a water resource means the quantity and quality of water required to satisfy basic human needs by securing a basic water supply[26] for people who are now or who will, in the reasonably near future, be relying on, taking water from, or being supplied from that water resource; and to protect aquatic ecosystems in order to secure ecologically sustainable development and use of that water resource.[27])

The Minister, the Director-General, an organ of state and a water-management institution must “give effect to” the Reserve as so determined, when exercising any power or performing any duty in terms of the Act.[28]

Generally speaking,[29] a person may only use water if the water use concerned is authorised by a licence.[30] A person who is required or wishes to obtain a licence to use water must apply to the relevant “responsible authority” for a licence.[31]

(The “responsible authority”, in relation to a specific power or duty in respect of water uses, means a catchment management agency if that power or duty has been assigned by the Minister to that catchment management agency. But if that power or duty has not been so assigned, the “responsible authority” means “the Minister”.[32])

A responsible authority may[33] require the applicant, at the applicant’s expense, to obtain and provide it by a given date with an assessment by a competent person of the likely effect of the proposed licence on the resource quality; and an independent review of that assessment, by a person acceptable to the responsible authority; may conduct its own investigation on the likely effect of the proposed licence on the protection, use, development, conservation, management and control of the water resource; may invite written comments from any organ of state or person who has an interest in the matter;[34] and may require the applicant to give suitable notice in the media inviting written objections, take such other steps as it may direct to bring the application to the attention of relevant organs of state, interested persons and the general public; and satisfy the responsible authority that the interests of any other person having an interest in the land will not be adversely affected.[35]

To conclude, it is evident from these provisions of the Act that, despite their guiding clauses which purportedly restrict the Minister’s discretions, and despite requirements of public consultation, their overall cumulative effect is to vest control of the use of water resources in the Minister, which the Act indeed explicitly confirms is the purpose.

It is a principle of the Rule of Law that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; any discretions should ordinarily be narrowly defined.[36]

In a society under the Rule of Law, it is essential that the legislature have the exclusive power of enacting general principles and rules.[37]

It may be so that, where societies provide public-welfare services, legislatures may find it necessary to delegate power to executive agencies to make rules having a legislative character, but the grant of such power should be within the narrowest possible limits.[38]

It is submitted that the Act goes beyond these strictures, and violates the Rule of Law in vesting overall control of the use of water resources in the Minister. Many measures made by the Minister could more properly be contained in the Act. Where the granting of discretions to the Minister is unavoidable, they should be within narrower confines than is authorised by the Act.

 

[1] National Water Act 36 of 1998.

[2] And to repeal certain laws, and to provide for matters connected therewith. National Water Act, Long title.

The Act contains a preamble, stating:

Recognising that water is a scarce and unevenly distributed national resource which occurs in many different forms which are all part of a unitary, inter-dependent cycle;

Recognising that while water is a natural resource that belongs to all people, the discriminatory laws and practices of the past have prevented equal access to water, and use of water resources;

Acknowledging the National Government’s overall responsibility for and authority over the nation’s water resources and their use, including the equitable allocation of water for beneficial use, the redistribution of water, and international water matters;

Recognising that the ultimate aim of water resource management is to achieve the sustainable use of water for the benefit of all users;

Recognising that the protection of the quality of water resources is necessary to ensure sustainability of the nation’s water resources in the interests of all water users; and

Recognising the need for the integrated management of all aspects of water resources and, where appropriate, the delegation of management functions to a regional or catchment level so as to enable everyone to participate.

[3] I.e., the minister responsible for water affairs. National Water Act s 1(1) sv “Minister”.

[4] National Water Act s 3(1).

[5] National Water Act s 3(2).

[6] National Water Act s 3(3).

[7] By notice in the Gazette.

[8] National Water Act s 5(1).

[9] Inter alia.

[10] National Water Act s 6(1)(a)(i).

[11] National Water Act s 6(1)(b)(iii) and (iv).

[12] National Water Act s 6(1)(c).

[13] National Water Act s 6(1)(h).

[14] National Water Act s 6(1)(i).

[15] National Water Act s 6(1)(j).

[16] National Water Act s 5(5)(a)(i), (ii) and (iii).

[17] National Water Act s 5(5)(b).

[18] Regulations for the establishment of a water resource classification system. Govt Notice 810 of 17 Sep 2010.

[19] National Water Act s 5(3).

[20] National Water Act s 5(1), (3) and (5).

[21] National Water Act s 12(2)(a), (b)(i), (ii) and (iii), and (3).

[22] Or each part thereof.

[23] National Water Act s 13(1)(a) and (b).

[24] By notice in the Gazette.

[25] National Water Act s 13(4).

[26] As prescribed under the Water Services Act 108 of 1997.

[27] National Water Act s 1(1) sv “Reserve”.

[28] National Water Act s 18.

[29] And except in the case of certain permissible uses.

[30] National Water Act s 22.

[31] National Water Act s 40(1).

[32] National Water Act s 1(1) svv “responsible authority”.

[33] To the extent that it is reasonable to do so

[34] National Water Act s 41(2)(a)(ii) and (iii) and (b).

[35] National Water Act s 41(4)(a)(ii), (b) and (c).

[36]  Rt. Hon Lord Bingham of Cornhill, The Sixth Sir David Williams Lecture (2006), Centre for Public Law, Univ of Cambridge. “The Rule of Law” (second sub-rule).

[37] The Rule of Law in a free society: International Commission of Jurists: report on the international congress of jurists, New Delhi, India, Jan 1959: Conclusions: report of committee I (the legislative and the Rule of Law) cl 2(2).

[38] The Rule of Law in a free society: International Commission of Jurists: report on the international congress of jurists, New Delhi, India, Jan 1959: Conclusions: report of committee II (the executive and the Rule of Law) cl I.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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