Regulation, Compliance Monitoring and Enforcement in the Water Sector

Meeting report

As the Chairperson was unable to attend the meeting, Mr P Mathebe (ANC) was elected as the acting Chairperson.

Regulation, Compliance Monitoring and Enforcement in Water Sector: briefing by Department
Mr Mbangiseni Nepfumbada, Acting Deputy Director-General: Policy and Regulation, DWA, stated that regulation was a key function of the DWA. It had been identified as a risk area in respect of the implementation of the National Water Policy and other legislation. Regulation as a programme covered Economic and Social Regulation, which looked at economic and social implications of water; and Water Use Authorisation, which looked at authorisation through use of regulatory instruments like licensing. The regulation programme also looked at compliance monitoring of licence conditions and regulations across the full water value chain, and compliance enforcement, which ensured that appropriate legal or corrective action would be taken against all unlawful water use. 

Mr Helgard Muller, Acting Chief Director: Regulations (DWA), stated that these functions would form part of Policy and Planning, which would represent the Water Management Programme. The regulatory function was effected on 1 March 2010. It was difficult to time regulation and compliance enforcement in a developing state. However, a phased process would be followed over time. A Compliance Monitoring and Enforcement (CME) unit would be set up to curb water transgressions and ensure the protection of all water resources in the country. The unit would ensure compliance with water legislation and enforcement where non-compliance is identified. Enforcement was not an end, but a means to an end. It could be used as a deterrent. The CME currently comprised of 20 staff with 30% located in the National Office focusing on enforcement, and 70% to be deployed in the Regional Offices that would focus on compliance monitoring. 

The DWA experienced challenges in setting up the CME unit. The challenges consisted of aligning regional and national functions as well as role clarification, drawing up requisite capability requirements, and moving from fragmented regulatory functions to consolidated functions. The DWA was in the process of refining regulatory functions from the national to regional offices. They were also looking at focused training and competence development for effective enforcement, and collaboration with departments like the Department of Environmental Affairs (DEA), the Department of Justice and Constitutional Development (DoJCD) and the South African Police Service (SAPS). An additional budget request was made as part of strengthening the regulation programme.

For the year, up until June 2010, 264 pre-directives were issued for illegal water usage by mines, the agricultural sector, Water Service Authorities (WSA), the industrial sector and other sectors. For the same period, 97 directives were issued, 7 cases were taken to the Water Tribunal and there were 23 criminal cases against illegal water users. The highest illegal usage of water was for irrigation. It was estimated that 180 million cubic metres of water was used illegally in the Upper Vaal catchment per year. Farmers were using water that was supplied through expensive water transfer infrastructure built and paid for by the domestic and industrial users of the Vaal River system. A process had been started to rectify the situation; however, it was costly, complex and time-consuming. It was only after the verification process on property was completed that a final decision could be made on the legality of the water use. No legal action could be taken until the process has been completed.

The DWA discussed actions that were taken against mines that were using water illegally. There were many mines that were operating without water licences. Regulation was restricted where mines were waiting for licences. Stronger cooperation was needed with the Department of Mineral Resources (DMR), specifically in cases where mining licences should be issued with water licences. The CME unit was taking a tough stance and instituting legal action against mines.

The CME unit’s enforcement protocol has been compiled and approved. It followed the Promotion of Administrative Justice Act as well as the Intergovernmental Relations Framework Act. If commitments and undertakings by the municipalities were not honoured, the DWA would move to the next step. Where a state organ had wilfully failed to cooperate without a valid reason or failed to implement the agreed solution, then that state organ would be held criminally liable.

Strategic focus areas for regulation included improving drinking water quality, eradicating unlawful water use in the Vaal River system, compliance of waste water treatment works, compliance by industry and mines, and implementation of the enforcement protocol against organs of state. Project Letsema would be focusing on eradicating the water licence backlog. The DWA believed that legal action was not the final solution. They would weigh other options and strategies to solve the problems.

Discussion
Mr G Morgan (DA) thanked the DWA for their presentation. He agreed with the DWA that it was preferable to solve water compliance problems instead of automatically pressing charges against offenders. He noted that there were some water courses that suffered severe pollution from a number of different sources. For example, Hartebeespoort Dam was being polluted by a number of sources. He asked if the compliance unit of the DWA had the capacity to look at entire water bodies and come up with strategies to turn these water bodies around. Many of the sources of pollution in the Hartebeespoort Dam were not from the North West province; they were from Gauteng. There were similar problems with catchment areas in general all over the country. The Committee was aware that there were approximately 125 mines in the country that were operating without water licences. He also understood there was a backlog for issuing water licences. He still could not understand why mines were permitted to begin operations without water licences. The DWA could not enforce the terms of the water use that was contained in the water licences if the mines were operating without those licences. The mines had to have the licences so the DWA could act against transgressors and enforce compliance. If this problem was the fault of the Department of Mineral Resources, then DWA needed to tell the Committee. There were mines operating in Mpumalanga that were granted mining licences and had applied for water licences. However, they exploited all their resources before they received the water licences and then shut down their mining operations. This was an illegal use of water. He could not understand why they were allowed to mine in the first place. What was going to be done about this? Was the DWA complicit in contravening the Act that were supposed to protect because they were not taking action against illegal mining happening in the country?

Mr Nepfumbada replied that there were efforts to manage pollution at the catchment level. The DWA was looking at the implementation of these strategies, specifically looking at upstream pollution. Water pollution had to be looked at in its totality. The North West was dealing with the pollution issues in Hartebeespoort Dam. There were the issues of remedying and addressing the problem; however, there was also the matter of prevention that had to be looked at more closely.

Mr Sipho Skosana, Director: Water Regulation (DWA), added that mines were not allowed to operate without water licences. The Mineral Petroleum and Resources Development Act (MPRDA) stated that mining rights were subject to the National Water Act. The MPRDA did not allow for mines to operate without water licences. The problem was that mining houses first approached the DMR for their mining licences before they approached the DWA for water licences. Once they had their mining licences they would start operations without obtaining their water licences. This was a clear transgression. The MPRDA clearly stated that both licences were needed in order to start mining operations. The DMR and the DWA were looking to harmonise the process and allow for mines to receive their licences concurrently.

Mr Skosana (ANC) noted that there was a backlog for the issuing of water licences. This had been an issue for a very long time and the Committee had spoken about it on various occasions. How far was the DWA in addressing the backlog? He was worried about the monitoring mechanism for the regulations that were effected on 1 March 2010 such as the structures in place to link municipalities with regional offices. He asked the DWA to elaborate on this. The DWA had said that farmers were using water supplied through expensive water transfer infrastructure paid for by the domestic and industrial users of the Vaal River System. Farmers were not paying for the water, but they were using it. How long had this been happening? What processes had been started to rectify this situation? The DWA said that if enforcement of regulations were not honoured by municipalities, the DWA would “move to the next step”. What was the next step?

Ms Deborah Mochotlhi, Letsema Project Manager (DWA), answered that the DWA was working around the clock to resolve the issues. The target was to finalise the backlog by the end of the financial year.

Mr Muller addressed the matter of the illegal use of water from the Vaal River. It was difficult to answer this question. He assumed it had been happening since the Lesotho Highlands came in to operation and farmers saw clean water flowing from Lesotho and started using it. It was costly and time-consuming to rectify the situation because the DWA would have to follow up with the farmers and only then could legal action be taken. This would take an immense amount of time.

Ms J Manganye (ANC) wondered if some of the challenges that were experienced with water regulation were because there were loopholes in the regulations for water. She thought that it was premature to give municipalities so much power in terms of water compliance. She asked the DWA to comment on this.

Mr Muller answered that the Water Services Act had to be revised to give more “teeth” to the regulatory functions of the DWA. The DWA knew that the legal system was time-consuming; however, they also needed to fix the problem.

Ms C Zikalala (IFP) stated that a lot had been said about water being polluted by a number of sources. For example, people in rural areas depended heavily on river water. However, this water was polluted by stock and sewerage. She asked what the DWA could do to help these people, as the DWA did not seem to be helping the rural areas.

Mr Muller replied that the government aimed to bring basic services to all people in the country. This programme has had some success, but has not been completely successful, as there were still people without access to basic water services. The DWA never encouraged people to drink directly from rivers; people had to drink treated water. This was why government was investing huge amounts of money in providing people with basic services.

Ms H Ndude (COPE) welcomed the establishment of the Compliance Monitoring and Enforcement (CME) unit. She asked how long mines were allowed to operate illegally while they were waiting for their water licences. How long did it take to issue licences? How would Project Letsema help with the backlog of licences?

Ms Mochotlhi replied that the DWA acknowledged the backlog of licences and its impact on the country and the applicants. Project Letsema was approved by the Minister late last year and was implemented in January 2010. There were approximately 3000 water licence applications that were waiting to be approved and issued. Since January, the DWA has dealt with approximately 1000 applications. One of the problems was that applicants did not forward all the necessary information and this hindered the DWA from dealing with applications more speedily. Sometimes, if licences were refused, the applicants took the DWA to the tribunal. This became a sensitive issue and was very resource intensive. The DWA also had to be careful about balancing development and environmental protection.

Mr Skosana answered that it took five months for water licences to be issued from the initial application stage.

Ms Ndude added that there were still so many mines that were operating without licences. She did not think that the DWA had responded to the concern adequately. She wondered how long these illegal mines were allowed to operate before they were shut down. The DWA said that it was difficult to regulate and enforce compliance in a developing state. She disagreed with this statement. This was an excuse that was used when people were too lazy to come up with better strategies to deal with the situation.

Mr Nepfumbada replied that the use of the term “developing state” was perhaps not the right term to use. From a policy perspective, policy was being developed as well as legislation and regulation.

Ms Mochotlhi added that the DWA did not allow mines to operate without licences at all. One of the reasons that they continued to mine regardless of whether they were allowed to, was because the processes that the DWA used to stop illegal water usage were too slow and lacked effectiveness. The aim of Project Letsema was to try to quash the backlog of water licences. They were also looking at a sustainability plan to ensure that there was no re-accumulation of the backlog in the DWA. The DWA was in the process of considering the implementation of a dedicated team that would deal specifically with the processing of water use applications. Contract workers were going to be trained to process water use applications. The DWA believed this was a step in the right direction.

Ms P Bhengu (ANC) noted that studies showed that irrigation used more water than any other sector. She asked if the CME was going to monitor the amount of water used for irrigation.

Mr Muller replied that irrigation was the biggest user of water. There were farmers that were using more water than they were entitled to. The DWA wanted to monitor and avert this.
 
On illegal water use in the form of irrigation, the Chairperson said that DWA had alluded to the fact that no legal action could be taken against property owners before the verification process has been completed on those properties. Only 44% of users had been validated so far. How long would it take to complete this process? Were there any regulatory or legislative bottlenecks that prevented the DWA from acting quickly on cases of fraudulent water use? Did the Blue Scorpions have pollution detection gadgets? If yes, would they be able to test and detect pollution on site? How sensitive were law enforcement agencies to water related crimes?

Mr Muller answered that the entire verification process would take approximately two years to complete.

Mr Nigel Adams, Head of the Blue Scorpions, addressed the question on the use of gadgets to detect pollution. He answered that gadgets were used by DWA, but they were only used as “indicators” as they needed to take proper samples to send to accredited labs to verify the information. DWA was working with other law enforcement agencies such as the South African Police Service (SAPS), the Hawks, the National Prosecuting Authority (NPA) and the Green Scorpions on sensitive cases. 

Mr Nepfumbada added that the DWA would talk to policy issues in the next discussion with the Committee. The DWA had to indicate how far they were with the implementation of those policies. The interventions were as a result of bottlenecks such as the harmonisation of processes.

Mr Morgan found the state of water affairs to be exceptionally worrying. About 98% of the water in the country was categorised as “allocated” water. This meant that it was being used for something. A certain amount of water was kept in rivers and water courses as part of the ecological reserve. With 98% of the water sources in the country being allocated, the country was still in a position where 3000 water licences had not yet been allocated plus people were using water illegally. This meant that the DWA did not know what was the real allocation of water. If over 100% of the water supply had been allocated, it would eat into the ecological reserve. The second problem was that mines were given licences when they should not be allowed to operate. The DWA had to look at the cumulative effect of all the water-use licences. Also, when mines were allowed to operate, it was inevitable that they would have to be given water licences. It would be too late to decline the water licence applications. The DWA had to put its foot down and tell people that they were not allowed to mine in certain areas. They also had to refuse to give licences to mines that had transgressed water regulations. These kinds of unregulated activities were a massive problem.

Mr Adams addressed the comment on the cumulative effect of illegal mining. There were approximately 48 mines that were issued with directives and pre-directives. These were being used as test cases because there were legal implications for the government and the DWA.

Mr Nepfumbada added that the DWA had to look at the impact on water resources. However, by the time the full impact was clear, it could be too late. This was why the DWA’s planning processes and interventions were meant to address early warning signs. From a water resource management perspective, the country only had two catchment management agencies that were fully functional. There were a number of agencies that were still being implemented.

Ms Mabuza stated that the Committee was passionate about the subject of mining without water licences. It seemed that the DWA did not take the Committee seriously. The same answers that were given years ago were still being given today. If ordinary members of society did not pay their water bills, their water would be turned off. Why could the DWA not stop mines from using water illegally? Secondly, the DWA indicated that irrigation used more water than mining. She wondered how this was possible. The Committee needed proper statistics to show that this was true.

Mr Adams replied that if illegal mines were stopped, the first thing they did was to run to court to get an interdict. Sometimes, this process could take up to five years. It was also a long process if they appealed to the water tribunal. This was why the DWA was working with the Department of Environmental Affairs (DEA). 

Ms Mabuza added that ordinary citizens suffered when they were unable to pay their rates because they were unable to run to the high court. It did not make sense to her that mines could continue to use water even if they were using water illegally just because they had the ability to run to the high court. This meant that the DWA was useless in stopping mines from using water illegally.

The Chairperson commented that Members had raised these issues on several occasions. He wondered why the DWA was scared of mines running to court if they thought they had a good case against them.

Mr Muller replied that the DWA was just as frustrated and concerned as Members were. Legal processes were often complicated and time-consuming. However, the DWA was not afraid to take legal action against miners that were using water illegally. This was why the DWA was involved in 23 criminal cases at the moment. The Committee should consider a legislative amendment such as including fines for misdeeds. This would make things a lot easier for the DWA.

Mr Adams explained the process of action taken against people using water illegally. The DWA issued a pre-directive saying that the DWA would issue a directive if they did not stop using water illegally. Normally, illegal water users did not stop and a directive would then be issued or the DWA would lay criminal charges. If the DWA went forward with the directive and the users still would not stop, the Water Services Act would allow the DWA to close down their boreholes or their water supply to their storage dams. This was the basic process that was followed.

Mr Muller commented that there were specific mines that used more water than specific irrigators. However, if one looked at total irrigation in the country compared to amount of water used by mines, irrigation used more water.

Ms Manganye asked if the DWA had any power over water that was on privately owned land. How often did the DWA meet with the DMR or other entities in the mining sector? It seemed that there was no communication between the two sectors.

Mr Skosana answered that the Water Services Act was clear about the DWA being allowed to regulate all water bodies. There was no such thing as privately-owned water.

Mr Adams replied that the DWA was talking to the DMR at an official level and they were willing to engage at a higher level and brief the Minister.

Ms Zikalala took exception to Mr Muller saying that the DWA was not responsible for people in the rural areas that chose to drink from rivers. There were people from the Eastern Cape that did not have clean running water. She wondered what the DWA expected these people to do. These people needed water to survive; they had no choice but to drink the water. It seemed the DWA was not looking after these people.

Mr Muller replied that he was sorry about the misinterpretation concerning people in rural areas drinking river water. He fully agreed with the Member's comments. They did not want to encourage people to drink from polluted water and that was why the government had a programme in place that would provide people with access to basic water.

The Chairperson added that Mr Muller had to apologise for saying that the DWA was not responsible for people drinking contaminated water.

Mr Nepfumbada replied that the DWA was fully aware that people were drinking water from contaminated streams and rivers. The DWA was trying to rehabilitate water sources. There were programmes to deal with this. He conceded that the amount of work that the DWA was doing would never be enough, as there was so much that still had to be done. The DWA wanted to ensure that the quality of water in streams and rivers was at an acceptable level.

Mr Muller said he was sorry if what he had said was interpreted as saying the DWA was not responsible for people in rural areas drinking from polluted streams. The government was involved in programmes that were trying to provide people with clean water. 

Mr Skosana (ANC) said that the DWA was supposed to implement decisions made by the government. There seemed to be a problem with service delivery.  Members could not sit at every meeting and speak about the illegal use of water without having some interaction with the illegal users of water. The Committee had to be assisted in this regard. The DWA had to give the Committee a report on their interaction with the illegal users of water.

Mr Muller replied that the DWA would look into this suggestion.

Mr Nepfumbada assured the Committee that the DWA did recognise and take note of the comments that were being made by the Committee. If there were issues that needed to be followed up, they would be sufficiently addressed by the DWA.

The Chairperson thanked the DWA for a straightforward presentation and discussion. He hoped that the DWA did not think that the Committee was being difficult. They just wanted the DWA to do its work effectively. He thought that the CME unit was a step in the right direction.

The meeting was adjourned.