Water and Sanitation Draft Policy: Department briefing

Meeting report

Chairperson Introductory Remarks
The Chairperson opened the meeting by noting that on today’s Committee agenda was the amendment of legislation, namely, the Water Services Act and the National Water Act. The Committee and the Department of Water and Sanitation (DWS) were encouraged to see the briefing as an interactive session. It would help in allowing the Committee be part of the initial stage of the processes.

Once the Bill was before Parliament, the Committee would take ownership it by passing it through the legislature – this was one of the core functions of Parliament.

The Chairperson urged that the meeting will be calmer than the day before because there will not be questions about tenders as asked by Mr L Basson (DA) – issues raised during that meeting will have to be rectified.

Apologies were received from the DWS Minister, Ms Nomvula Mokonyane, who was in Cabinet, the Deputy Minister, Ms Pam Tshwete who was ill, as well as two Committee Members.

Briefing the Portfolio Committee of Water and Sanitation on Upcoming Legislation
Mr Dan Mashitisho, DWS DG, took the Committee through the presentation noting that there were two pieces of legislation, the Water Services Act and the National Water Act, which should be merged. This merger should be done in terms of the following key drivers:
-National Water and Sanitation Master plan
-Water as a mega nexus
-Ownership of water and sanitation infrastructure
-Differential levels of service for sanitation
-Appropriate technologies for sanitation solutions
-Applications of appropriate authorisations/licensing
-Setting of tariffs for the whole value chain linked to level of service and economic conditions
-Linkage between spatial planning and water and sanitation master plan
-Consideration of other departmental legislations impacting on water and sanitation
-User pay and polluter pays principle
-Free basic water should only be given to indigent people.

Mr Puseletso Loselo, Chief Director: Legal Services, DWS, outlined progress made by the Department so far up to date – the first draft of the Bill was produced and shared with selected chief directorates to solicit inputs in May 2015. Workshops were held and the DG’s Technical Committee was formed in July 2015. There was a meeting held with Rand Water the same year. In 2016 a presentation were given to top management. The refinement of the Bill was on-going and a draft socio-economic impact assessment was completed. A Cabinet Memorandum to the DG and the Minister was expected this month and the submission of the Bill for preliminary certification by the State Law Advisor was expected to happen in July 2017.

Discussion
The Chairperson repeated that it was a good thing the Committee was informed on processes the Department embarked on. The end product should obviously come to Parliament to do the necessary work. He asked that the Committee’s questions be informed by what will be transformed.  He heard public consultations mentioned and asked if key stakeholders, rather than the general public, were identified. Had such stakeholders been identified? How did the black component come in? Water was business.

Ms T Baker (DA) asked where legislation fits in as the process to merge the two Acts had not happened yet. Would the legislation be aligned with both Acts because it could not be aligned with the proposed new Act? Would the policy have to be reviewed once the new Act was active? She felt the “water was getting a bit muddy” regarding the mandate of the Department – DWS was responsible for the bulk infrastructure and the Department cannot determine who received free water at local government level. In the meeting yesterday the Minister said she did not have anything to do with “what happens down there”. Determining who received free water was the responsibility of Cooperative Governance and Traditional Affairs (COGTA). Mention was also not made of consultation with the Department of Mineral Resources, who she said contributed largely to problems regarding water, and the Department of Environmental Affairs.
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Mr T Makondo (ANC) welcomed the process. He highlighted the questions of Ms Baker related largely to local government – matters he too was concerned about. How would the Bill affect the Municipal Systems Act which gave local government certain powers concerning water?

Mr Basson requested that, since this was the first time the Committee was dealing with legislation, the Committee Content Adviser, Ms Shereen Dawood, explain the legislative process to Members and how the Committee became involved and the White/Green Paper process.

The Chairperson said this would be done later.

Ms M Khawula (EFF) noted that the Department initially started out as the Department of Water Affairs but had since been changed to the Department of Water and Sanitation. She assumed this would bring improvement to services but, up until today, this did not happen. She did blame departmental officials but she had an obligation to represent the people. How would merging the two Acts assist the people on the ground, those who shared water with animals and who did not have running toilets?

Ms H Kekana (ANC) asked what measures were considered around the oceans and mining.

Mr Mashitisho answered that, in terms of transformation, several issues were outlined such as the issue of accessibility. The Act will ensure that the Department expanded on the existing backlog of accessibility on the side of legislation as well as on the side of affordability to ensure all citizens can afford water and so on. Affordability explained why there was a constitutional prerogative made for basic water services. The Act will ensure all people can afford water according to their use. If water was used for commercial purposes such as mining and other industrial uses, tariffs should consider there was profit from such water use.

The Act could also assist in sustainability which should also be transformed. If there is no sustainability precious water sources will diminish. Legislation should also look at punishing those who polluted water so that it was a sustainable resource. There were licences the Department found where the historically advantaged side were still benefiting. The gap needed to be filled where legislation did not benefit those who needed it.  

The Chairperson asked if the Department did any work on finding out the source, who owned it, what percentage of water was under state control and what percentage of water was under private control. Knowledge of this work would be useful because the Committee had been grappling with the issue of ownership for quite some time. If an Act was introduced which merged the two existing Acts, the issue of ownership will still be a problem in the Bill. The presentation did not assert that the state wanted to be in control of water. Mining was an example where the state took a decision that all minerals belonged to it – those seeking access were to apply for mining rights.

Mr Mashitisho replied that he can safely say that water belonged to the state. While there would still be private users, the Act would assert the state owned water. Private users applied when the water source was on private property. One would have to approach the state and apply for a user licence such as for a borehole. Private ownership however did not exclude the state. Regarding catchment areas, there were more than 4 000 dams of which over 341 were owned by the Department.

Mr Basson highlighted the constitutional provision that the Minister was the custodian of water and there was a difference between this custodianship and owning water. The answer of the DG was his own opinion. The key question what the Act said about ownership – if the Act was silent about this it must be dealt with. This was the crux of the matter since he became a Member of the Committee. The Act only outlined that the Minister must protect water and ensure it was managed. The DG should say the Act was silent on the issue of ownership. An example was a farmer who built a dam to catch rain water – the water caught belonged to the farmer. In 2015 a regulation went out to say that during the drought one could not extract more than 40 000 litres of water. The Member then asked Mr Anil Singh (DDG: Regulation and Compliance, DWS) for clarity on the regulation but Mr Singh did not know.  

Ms Baker said there was a difference between ownership and custodianship. She suggested the Department benchmark other countries where the state owned the water, for example in Israel, where water had been nationalised. If the situation was as the DG described, one would need a permit to even put a Jojo tank in one’s yard. The difference between custodianship and ownership will greatly inform the legislation and the policy the Committee and the Department made because it allowed, as well as restricted, certain jurisdiction.   

Mr Makondo asked how the Act would address the Department only owning around 300 of 4 000 dams.

Mr Mashitisho replied that the discussion showed the importance of having clear legislation. Ideas coming from the Committee were very good and will be accommodated in the Act. He pointed out that the state had some control over the rest of the 4 000 dams which explained why licences for water use could be revoked.  

Ms Baker pointed out the use of words of the DG - it was a water “use” license and not a water “ownership” license.

The DG said that the 341 dams made up 92% of the total water in dams and this was really where the source was - the rest of the 4 000 dams makes up about only 8%, which left space for working on the definition of what a dam was. Government owned very big dams – there should not be panic because the 341 dams were the key water sources. With the rest of the dams there were issues with transformation.

When the Act was done there will be one piece of legislation instead of the current two pieces of legislation. The new Act seeks to repeal those two pieces and bring them into one Act. The Department believed, also because there was no Sanitation Act, it would be best to bring all matters together under one Act. The other option was to leave the two Acts and then have a new Sanitation Act – this however would result in three pieces of legislation. Having one Act with different chapters was what the Department wanted to achieve.

Municipalities and local government were the Water Service Authorities and not the custodian of the Water Services Act. Both municipalities and Water Boards were governed by the Water Services Act. DWS was in control of the Act as the Department could decide on awarding local or district municipalities’ authority status – such status could also be revoked by the Department.  The new Act emphasised service delivery as more people, especially the historically disadvantaged, will have access to water.

The Chairperson asked what the Department wanted to transform if only 8% of the water was in private hands.

Mr Makondo disagreed with the DG on the 8% because in the Limpopo area, where he was from, there was a well-known farmer that diverted water from upstream of the Letaba Dam. The Department was shying away from dealing with the issue of water ownership. 

Ms Baker asked if it was COGTA or the DWS that granted municipalities’ authoritative status.

Mr Mashitisho, on the issue of boreholes, replied that no person can extract water without authorisation from the Department. Even a borehole in a private yard had to be authorised – this authorisation was also important because some extracted water could be harmful when consumed by humans.

Transformation of water was similar to the issue of land transformation - as government can decide about land expropriation, water can be looked at along same lines. These were matters to be looked at regarding legislation allowing for universal access to water.   

The Chairperson, on the question of Mr Makondo, noted that a farmer blocking a stream so that 3 000 people did not have access to water was still standing. He highlighted the importance of the briefing allowing Members to grapple with the issues of the Bill before it came to Parliament. The Bill should get the justice it deserved – content speaking to transformation should be inserted in the Bill.

Mr Loselo outlined that according to the Water Systems Act, the function of Water Service authority was awarded automatically to district municipalities unless there were instances where local government wanted to be the Water Authority - the Minister of COGTA can assign that.

Ms Baker asked if it was agreed that the function was then COGTA’s and not that of the DWS.

Mr Loselo answered that the Minister of COGTA deciding to award a local municipality authority did not stop consultation between that Minister and the Minister of DWS regarding determination, which happened in the spirit of good governance. The National Water Act was not explicit about who owned the water but depending on what the water was used for, one had to apply to the DWS Minister. For domestic water use, which included giving water to animals, one need not apply but for commercial purposes, one was obliged to apply. This did not make one the owner of the water – it only allowed for the right to use the water as per the licence awarded. Licences could also be conditionally revoked.

Issues in the Act that will bring about transformation included two cases that were worrisome to the Department – (1) “use it or lose it” principle and, (2), the policy regarding existing lawful water use. In terms of the 1966 Act, if one claimed to have legal water use from 1996 onwards, it would remain lawful use of water. The Department was looking to reverse this – these people should come forward and claim so that the Department could decide if the water was still lawful. What currently happened was that people kept water even if they did not use it.

The Chairperson asked if Mr Loselo was talking about the 8%.

Mr Loselo replied that he was talking about all of it. He reiterated that the 8% also required permission for water use.

The Chairperson asked why it was not then said that the state owned 100%.

Mr Loselo said this was in fact the case.

The Chairperson referred again to Mr Makondo’s example.

Mr Loselo said again that the 8% required permission.

Mr Makondo asked how it can be that the river to the Letaba Dam was closed if it was under control of the state.

Mr Loselo replied that he did not have specific information regarding this particular case/region but only a certain amount of water can be extracted.  Blocking a stream was a transgression.

The Chairperson said the state then did not have capacity to monitor. In the Bill it must be said that the state will create capacity to monitor. He referred to the Green Scorpions of the Department of Environmental Affairs.

Mr Makondo said that DWS was spending billions to take water to Giyani whilst there was enough capacity to store water in Giyani. He was from that area and he cannot be told that when things were happening, such as he described, that the Department owned the water.

Ms Baker agreed with the point raised by the Member noting the administration and management of the Water Use Bodies created the problem. When questioning water use in Mpumalanga, where the coal mines were, she was given a written response that the Department only had two people to monitor there. How effective could two people be? At the time of this enquiry the Umfolozi River was bone-dry – this was due to mine licences and not because of drought, as the Department had said.

The Chairperson assured the Department that it did not have to defend itself against Members in this meeting but merely to take note of issues raised.

Mr Basson found that Section 22 of the Act stipulated who may use water and for what water licenses may be needed for – this was in Schedule One. He highlighted the case between DWS and Lemoenshoek farm that the Department lost with cost. Downstream from Lemoenshoek, farmers were not getting water even though the current Act stipulated one could continue to use the rights without applying for a licence if the rights were obtained under the previous Act. The building of dams was allowed as long as it was less than 250 000 cubic metres. The Department had useless attorneys who did not appeal and now this High Court judgement was being used everywhere.

Mr Basson said he wrote many letters but the Department was not moving forward. He was informed verbally that the case will have to go to the Constitutional Court but this did not happen. The Member received a letter from the Minister last month to say that verification will be done in the whole of the Gouritz-area. It was said the process will be finished in June but it had not yet even started. The problem was officials not doing their work. If the Department did not take the matter back to court and get another judgement, no progress can be made.

Through an interpreter, Ms Khawula found that between COGTA and DWS there was confusion. The Committee still did not know who owned the rest of the dams. She referred to the company aQuellé, which bottled water, and asked if it had a water license. There were people in Mpumalanga who had boreholes and did not pay for the water drawn. Water in Jozini Dam was being used recreationally for water-skiing and so forth. Mr Basson was not only representing people of a certain colour but was representing everyone.   

The Chairperson said another issue was that boreholes did not have to be registered in villages while they had to be registered in town.  

Mr Loselo, on the matter of transformation, said the crux of the question was at which point one would lose water when it was not used – this should be made explicit. Currently people were selling water without government being aware thereof. Sectors were also keeping water for themselves via re-selling it. As it stood, the White Paper was clear that trading of water was not allowed.

The Chairperson asked what will happen to people’s dams when water was taken away.

Mr Loselo remarked that a dam was just a storage facility and if there was no license for water there will not be water in the dam.

The Chairperson asked if the water in the dam would then just evaporate.  

Mr Loselo replied that if the dam was built in such a way that it extracted water, it will have to be demolished.

The Chairperson asked who will demolish it.

Mr Loselo was not sure. With the question of key stakeholders, these included municipalities and mines. In terms of the benefitting of the black component, he referred to the redistribution of water.

The Chairperson asked if the black component will then only benefit if the water was surrendered. He asked how Mr Makondo’s question about the ZZ2 farmer will be addressed.

Mr Loselo said that if a stream was closed it was a transgression of the National Water Act and people should be sent to go and see.

The Chairperson asked if it can be agreed and noted that the ZZ2 issue, as well as what Ms Baker said about the mines in Mpumalanga, will be investigated by the Department.

Mr Loselo agreed. In terms of the mandate of the Department and effect on the Municipal Systems Act, the said Act, and the Water Services Act, made similar provisions and there was an overlapping of mandate between the Department and COGTA – this will be addressed in the new Act. It was partly unfair to say DWS attorneys were useless in the Lemoenshoek case - Lemoenshoek was claiming existing lawful water use but applied for the recognition of that water use in 2001. The case included the erection of a dam. The Department issued a directive that the dam be demolished and Lemoenshoek then took the Department to court. The issued certificate turned the case around. The Department sought advice from Senior Counsel and was advised to undertake a study bout whether the banks of the damn should be lowered instead of appealing the case. A further study about how much water should be allowed to go through the damn was also suggested.

The Chairperson asked if that license was for life.

Mr Loselo explained licenses can be reviewed from time to time. The process of reviewing this license will be informed by the study.

The Chairperson asked if the study was being done.

Mr Loselo replied that the Department had written to the CEO of the Breede-Gouritz Catchment Management Agency (BGCMA) to conduct the study – he last heard that the Agency was busy with the tender.

The Chairperson was surprised to hear the matter was put to tender – did this mean the Department did not have capacity?

Mr Loselo said it depended on the magnitude of the matter.  

The Chairperson asked Mr Squire Mahlangu, DDG: Corporate Services, DWS, who was dealing with that.

Mr Mahlangu replied that it was done by a division and if there was any usage of water which would deplete supply, it would be made known.

The Chairperson asked if the Department was utilising that division in this case.

Mr Mahlangu replied the problem was that permission was given long ago and the user had to be recognised.

The Chairperson asked what was going to be transformed if the Department was shy to address the point of Mr Makondo i.e. “if you want to transform, then transform”. Why could the recommended study not be done within the Department? 

Mr Loselo explained it was called reserved determination - a preliminary reserved determination can be done even as a desktop study but if the Department wanted to take an adverse decision, a preliminary reserved determination was not good enough.

The Chairperson asked if this actually meant the Department did not have capacity.

Mr Loselo replied that as the entire catchment area should be studied, the Department did not have the capacity.

The Chairperson retorted he had just met an intern who knows much about the issues under discussion. Perhaps the Department was undermining its own capacity especially as there was a lot of capacity in the Department’s construction units.

Mr Mahlangu said the Department wanted to give people two years to have their water use verified.

The Chairperson asked why old licenses could not be scraped so that everyone should re-apply.

Mr Mahlangu indicated the Department would like to do so but was hamstrung by the law.

The Chairperson wanted to know what law was referred to. The Committee was present as lawmakers and could change laws. Issues of lack of transformation came up when laws were not transformed. The case highlighted by Mr Basson still stood – the Department was not speaking to this because it was looking at a tender first.  

Mr Basson said the problem was that the 1998 Act said, if one had rights under the 1956 Act, one did not have to get a licence. The Member was in possession of the entire judgement and the Judge said the Department’s advocates did not come up with any evidence to the contrary. The Department also did not appeal even though other respondents were willing to supply some of the cost. There were also rumours in the area the Lemoenshoek farmer paid officials off.

The Chairperson requested that the Department provide its legal advice (to not appeal) to the Committee in 24 hours.

Ms Baker asked if the Act made provision for stream flow reduction activities. There were regional offices with huge staff complements but it was said people were not doing much when at work – furthermore, the employees could not be fired because of conditions of employment. How many people were in these officers and what were their roles and responsibilities?

The Chairperson felt the structure of the Department should be clarified.

Mr Basson asked if the legal opinion, requested by the Chairperson, would come from the same Senior Counsel used during the case. If so, the advice provided will be incorrect as the Department went to court unprepared.

The Chairperson highlighted that he and Mr Basson had a lot of work to do for the Committee in the coming two years to lay a good foundation for Committees to follow.

Ms Dawood remarked that the main function of the Parliament, as guided by the Constitution of SA, was to make new laws and appeal or abolish old laws. The opportunity to look at drafting of a Green Paper was lost because the Department sought to repeal both the National Water Act and Water Services Act. If a Green Paper were to be drafted to conceptualise all of these issues and the gaps between the different pieces of legislation (also in the Municipal Systems Act) public hearings can be held both by the Department and Parliament. This would give more resonance to all of the key issues debated thus far. If one went via the process of the Green Paper and White Paper, some of the challenges within the pieces of legislation, such as the Department falling into the trap of using regulations to cover up, majority of municipalities being both Water Service Associations and Water Service Providers, without a separation of power, can be addressed. It was critical to follow the route of the Green Paper and White Paper to ensure the piece of legislation was not fragmented. The regulation model made capacity within the sector for municipalities to recruit a staff component for water services policy and oversight but the reality was that municipalities had a combined technical unit to run all services - this should come out in the Green Paper. Decentralising regulations to municipalities was inappropriate given current skills shortages and it presupposed good regulatory capacity on the ground. The result was that some mandatory functions in the Act were not carried out.

All of these issues, as well as what Members said, should be collated prior to drafting a new Bill – this was a great opportunity missed by the Department. The future role of the Department as a sector leader and regulator needed to be defined within the parameters of the new Bill.  Amendments in the Water Services Act should include restructuring of the financial arrangement and equitable share allocation should be prioritised. With Green and White Papers, constitutional amendments can also be argued. The Public Finance Management Act (PFMA) and water service authority legislation needed to have the same set of rules. The new Act should be aligned to the Municipal Systems Act as well. Other matters to be relooked included the institutional and financial component, access to water, in terms of ecological reserves, emerging farmers, climate change, pollution, compliance, enforcement and authority from the Department and Catchment Management Agencies.

The Chairperson said that this may be put in black and white as a guide for the Committee and that parliamentary processes allowed for public hearing. At such a time, role-players, old and new, can be invited. The foundation stage was very important and it should not be missed especially as matters under discussion were constitutionally imperative and should therefore not be rushed. Something should be passed which could really move the country forward.

Mr Mashitisho said the input made by Members was critical. The matter was brought before the Committee to solicit the views of Members – the actual submission date was in November. The National Sanitation Policy was currently before the Committee – the policy was in a draft stage and because the policy already existed there was no need for a Green and White Paper. On the side of water there was also an existing policy so the Department had passed the stage of a Green and White Paper. In terms of staff in the regional offices, the Department was in the process of restructuring together with Catchment Management Authorities to focus on core business such as water resource management and blocked rivers.   

Mr Loselo replied to the question of stream flow reduction by noting that it would not be authorised. The legal opinion sought was from the same Counsel that represented the Department – this was standard practise. The suggested road for the Department to take was taking long.  

The meeting was adjourned.