Until 1994 the considerable technical expertise of the Department of Water Affairs, was directed towards servicing the water needs of the apartheid state, resulting in an inaccessible centralised bureaucracy in which the needs of the people on the ground, particularly the black majority, were not taken into account.
Neither the institutional structure nor the approach of the Department allowed ordinary people to participate in decisions that directly affected their lives. This exclusion was made worse by high levels of illiteracy amongst the majority of the population, which prevented them from gaining access to much of the information held by DWAF.
The institutions with which we work and the framework of rules within which they operate are critical to the achievement of our vision of some water, for all, for ever, particularly in the face of increasing water scarcity. The new institutions we build will have to be developmental in nature, informed by technical and social considerations, structured to promote the values and intent of the Constitution and able to adopt a flexible approach to water management.
One of the ideas that has emerged during the development of South Africa’s Constitution is that of co-operative governance. This recognises that, while many governmental functions are undertaken in national, provincial or local spheres, there must be a commitment to co-operation between each sphere. This profoundly affects water resource management.
Water management is a complex function which includes regulatory, support and straightforward operational activities. Any review of water management institutions must look at whether there are any services that could more cost effectively and more efficiently be undertaken outside of the Public Service.
The issue should be considered in the context of the need to review our whole approach to Government and the management of public services. It is necessary to ask how effectively current Government organisations are performing the services with which they are charged and whether different public sector arrangements could be more effective while still achieving the goals of equity, corrective action and social justice.
7.1.1. The role of national Government
Apartheid has left a great lack of management capacity in many areas across the different spheres of government. Thus, to help build the ability of other spheres of government to provide water services and to contribute to water resource management, national Government must be deliberately developmental in its approach. Active intervention will be required both to carry out water management functions and to build organisations with the capacity needed.
The range and variety of issues which affect or are affected by water management show how important it is to address it in an integrated manner. Quality can only be managed jointly with quantity; economic considerations must be weighed together with social and environmental ones; groundwater has to be managed with surface water, and international water allocations cannot be considered in isolation from the domestic context. Nor can water management easily be separated from other activities. Land use, human settlements, industrial activity and mines all impact upon (and are affected by) the water cycle and our management of it.
Water resource management functions which should be approached in an integrated manner include resource allocation and protection, use and conservation, monitoring, planning, development and operation. The complexity of an integrated approach to water management reinforces the need to assess competing water-uses on the basis of optimum rather than simply beneficial use. It has been concluded that the most appropriate unit in which this can be done is either the catchment, part of a major catchment or a water system in which a number of catchments are linked. Whatever arrangement is introduced, it must be clear that it will remain subject to national authority.
7.1.2. Internal transformation in the Department of Water Affairs and Forestry
Considerable progress has been made in the internal transformation of DWAF, reflected in its restructuring, the implementation of a new employment equity policy, the new activities begun externally and the new approaches to management adopted internally. However, the implementation of the policies identified in this document to achieve the aims of the national Government will require further transformation of the Department as well as the possible development of other bodies at national and regional level to carry out specific water management functions.
One restructuring priority would be to shift away from an engineering and operational focus towards more multi-disciplinary regulatory functions, which would require re-prioritisation of resources within the Department. These new functions could include the promotion of conservation and demand management which will require new skills and capacities. The regulatory capacity of DWAF will need to be substantially improved to enable it to implement and enforce the new policies set out in this document. To achieve this will require both a re-prioritisation of existing resources as well as special programmes of capacity building (see Section 7.3).
Another concern at national level is that current institutional arrangements are not supportive of the need for the further, cost-effective, development and operation of the national water infrastructure, the dams, tunnels, pump-stations and pipelines that link different catchments and parts of the country together. There are several new, potentially viable, large water schemes which if built would meet urgent needs and cover their costs but there are few incentives, and many obstacles for a Government department to work in this way.
Specifically, it is difficult within present arrangements to organise and manage activities as logical business units whose efficiency and effectiveness can be monitored and maintained. It is also not possible for Government departments to borrow money for individual schemes; as a result, where the budgetary provision is not available to cover the full construction costs, potentially viable schemes often cannot be built.
The relative success of regional public utilities - the Water Boards - in providing bulk water services has raised the question of whether the establishment of a national water utility to manage the national infrastructure may not be appropriate. The transfer of the functional component of bulk water resource development and operation to an organisation managed on business principles could be feasible since most of the large catchment development and inter-basin transfer projects already operate on a cost-recovery basis and are financially viable.
An alternative to a new utility or restructuring internal Departmental arrangements would be to establish special organisations for each project. This has already been done, for different reasons, in the case of the Lesotho Highlands water project and the Komati Basin Water Authority. The disadvantage of this approach is that the proliferation of organisations accentuates the demands on scarce management resources.
7.1.3. Management at regional and catchment level
At a regional level, water management is presently carried out by offices of the national department. These offices continue to function as part, and respond to the priorities, of a central office and do not necessarily reflect the intent of Principle 23 which requires the responsibility for the development, apportionment and management of available water resources to be delegated to a catchment or regional level in such a manner as to enable interested parties to participate.
The present generalised lack of technical and managerial expertise means, however, that a mechanical decentralisation or delegation of functions is unlikely to achieve the objectives of more responsive and effective water management. The goals of public policy will only be achieved if such delegation goes hand in hand with systematic capacity building and effective monitoring and support from the national Department. This should include specific attention to make sure that the objectives of equity and corrective action are promoted and that existing differences in economic and social power are not strengthened.
7.2.1 Integrated Management
The new management approach and organisational arrangements will be designed to provide for integration across a number of dimensions:
7.2.2. Functions of the national department
An institutional framework will be established which reflects the central responsibility of the national Government as custodian of the nation’s water resources. The institutional framework will also build capacity at regional level for the execution of certain management and operational functions, and allow for the development and operation of major infrastructure to be carried out in a cost-effective manner.
Apart from the clearly Governmental functions of policy formulation and regulation, certain water resource management functions will continue to be performed by Government at national level, including:
7.2.3. Establishment of a national public water utility
At national level, it is also necessary to address the problems identified in section 7.1.2. with respect to the management of the national infrastructure. Provision may be made to allow the functions of managing the national water infrastructure to be transferred to a public water utility established for that purpose. The functions of such a utility could include the planning and development of infrastructure, its operation and financing.
This route will only be followed if a more detailed study shows that it will give clear public benefits. While it must allow for the self-sufficient development and efficient operation of the main national infrastructure, it should not reduce the ability of the State to promote projects of high social priority, nor should it undermine the ability of the Government to formulate policy, monitor and regulate the sector.
7.2.4. Catchment Management Agencies and Committees
A key function of the national Department will be to promote the establishment, and support the functioning of Catchment Management Agencies (CMAs) as and where conditions permit. Such agencies could have a wider or more restricted range of functions delegated to them, depending on the requirements of the specific catchment/s and systems within their jurisdiction, their capacity to undertake the management tasks, and policy decisions on the overall approach.
As an example, control over dams for recreational use and environmental conservation will, where capacity exists, be delegated to regional, catchment or local authorities. The national department will provide guidelines and standards for the management of these activities.
CMAs will be developmental in nature, and serve the interests of equity, corrective action and optimum use of water. Any functions carried out by a CMA would be done within the parameters of national policy and standards. The governance structure of CMAs will balance the requirement to reflect the interests of various stakeholders with the need to ensure the effective management of the catchment area.
Where CMAs are not established, the Department (or a delegate) will carry out the management functions until they can eventually be handed over to such an agency. Where this approach is adopted, a catchment advisory committee will be established to enable water users and those who impact indirectly on water quality or quantity to participate in water management. This will provide a focus for the development of local capacity to undertake an increasing range of water management functions.
Implementation of the proposals for water pricing in Section 6.5 will be necessary to make sure that CMAs are financially viable.
7.2.5. Catchment management plans
The main tool proposed to facilitate management at regional or catchment level is the use of a catchment or system management plan, which would be drafted within a nationally determined framework either by the CMA or in consultation with all role players where a CMA does not exist.
The catchment management plan will contain details of:
These plans will need to be approved by the national department, and when combined, would constitute the basis of a national water management plan.
7.2.6. Existing operating organisations
Organisations such as water boards and irrigation boards will interact with the CMA primarily as stakeholders within the catchment; however, given the limited water management expertise available, it may be appropriate in some circumstances to delegate certain functions to them.
Existing irrigation boards established with no water supply functions (but mainly with supervision, control and distribution functions in terms of the existing Water Act), could be transformed and incorporated into CMAs.
The future of such organisations will be reviewed on a case by case basis.
7.2.7. Dispute resolution
It is important to identify the policies, institutions and practices that will support the principle of equity and equitable access and will protect the constitutional right to procedural fairness and access to courts or other appropriate forums. Equitable access must also recognise the public’s rights to present evidence to the administration, and to obtain written records or reasons for decisions.
In a situation where authorisation to use water is allocated on the basis of competing claims for the same, limited resource, a mechanism for resolving disputes will be necessary.
Section 34 of the Constitution provides that every one has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, or where appropriate before another independent and impartial tribunal or forum.
Under the 1956 Water Act, only a Water Court can hear and determine a dispute or claim around water allocation issues. The Water Court has however no inherent powers, no criminal jurisdiction and no power to deal with criminal offences nor to review any administrative action. The Water Courts also have a tradition of being inaccessible to members of the public and are located in urban areas, often far from the areas where disputes occur. A large number of the judgements of the Water Courts are unreported and access to precedents set by the Water Court have been the privilege of a minority of specialist lawyers and technicians who have participated in that court’s proceedings over the years.
Principle 22 requires that the institutional framework for water management shall, as far as is possible, be simple, pragmatic and understandable. It shall be self-driven and must minimise the necessity for state intervention. Administrative decisions shall be subject to appeal.
In the light of this principle, the inefficient and inaccessible Water Courts will be reviewed in consultation with the Chief Justice and Judge Presidents of the High Court and the Minister and Department of Justice and replaced with more appropriate legal institutions. A possibility which will be considered is the establishment of a specialised Natural Resources Court to deal with all natural resource and environmental matters.
Administrative decisions of Government officials taken under the new water law will be subject to an appeal to the Minister of Water Affairs and Forestry. The Minister will be given the power to establish a review committee or to refer an administrative appeal to an advisory committee before he or she makes a decision on the appeal.
Should the Minister’s decision be considered by either party to be unacceptable on administrative grounds such as unreasonableness or undue bias, the matter may be taken to the High Court for judicial review.
7.3.1. Background
Perhaps the single most important factor in achieving wise and efficient water resource management is the training and the development of the full potential of the people who will work in this sector. Emphasis must be given to training and skills development for members of disadvantaged groups, with a special focus on women.
Historically, access to education has been racially determined, with the apartheid government spending up to ten times on a white child what they spent on a black child. Universities and Technikons were also racially segregated and funded according to racial criteria. The result has been a severe lack of training, education and skills development in the black community. This lack has been made worse for women who have been informally excluded from the scientific and technical sectors.
Human resource development lies at the heart of the transformation of DWAF. The structure of the Department has been and is being reviewed and to give emphasis to the function, a new Human Resource Development Directorate has been created. Formal employment equity and gender policies have been developed and are being implemented and attention has been focused on the appointment of previously disadvantaged persons. This, accompanied by a restructured bursary programme, a vigorous in-house training programme, and opportunities for existing staff to further their education, is laying the foundation for the development of a team of competent personnel in this field.
7.3.2. Sectoral Capacity Building
Water resource management will only be successful if the personnel are developed not only in DWAF but in all relevant organisations and agencies, at all levels. Thus for Catchment Management Agencies to be successful and to implement sustainable and participatory water management strategies, capacity will have to be built in marginalised and disadvantaged groups as well as at a technical level. Women are an important group, particularly in rural areas, who should be targeted by capacity building programmes.
The Government and all other players must be involved in partnership activities for capacity building at catchment level.
7.3.3 Water and Gender
The development of women in relation to water management is important for a number of reasons. Women are the traditional custodians of natural resources in the rural areas, and they are also the people who suffer most from degradation of water and other natural resources. In the rural areas women spend long hours fetching water for their families, and are the custodians of family health.
Empowering women through access to information on simple water purification procedures, as well as making it possible for them to work through water committees, and ultimately in catchment management agencies, will make sure that women’s voices are heard in the quest for safe, available water. Women are also articulate in their defence of the environment and in promoting water conservation activities. It is through education of and communication with women that basic attitudes to water will change.
It is important that women are represented at all levels and in all spheres of water management activities, in political, technical and managerial positions.
Article 14 of the Convention on the Elimination of Discrimination Against Women, ratified by South Africa on 15 December 1995, obliges the State to take into account the particular problems faced by rural women and the important roles they play in the economic survival of their families, including the unpaid work that they do. It further places a duty on the State to take appropriate steps to make sure that women participate in and benefit from rural development, including the planning and implementation of development at all levels. The state must also make sure that rural women have equal access to economic opportunities and enjoy adequate living conditions in relation to water supply and sanitation. In short, we support the feminisation of water management.
7.3.4. Human Resource Development Policy
The human resource development programme of DWAF will be adjusted to focus on the new policy priorities, with a particular focus on the development of staff from disadvantaged communities.
DWAF will establish links with tertiary education and other training institutions in order to ensure that training of water managers, both for the Department and more generally, is appropriate to the new direction contained in this policy document.
The programmes of the Water Research Commission to develop technical capacity for water management will continue to be supported.
7.4.1. Background
The sustainable management of our water is dependent on maintaining and developing South Africa’s internationally recognised capacities in the field of water research, led and supported by the Water Research Commission (WRC). The WRC is funded almost totally by water users through a Water Research levy. The WRC makes sure not only that research is carried out but also that research staff, academic staff and water professionals more generally are properly trained.
Over the last decade, the traditional fields of water research, agriculture and industry, have been extended to include research in the fields of social and financial issues, integrated catchment management, policy development, decision support systems, capacity building (including education and training) and ecosystem structure and function. There has been a trend towards interdisciplinary and participatory research which recognises the need for a link between technology and communities. These approaches need to be extended and accelerated.
7.4.2. Water Research Policy
The existence of the WRC is probably the single most important assurance that necessary research will be carried out and that trained human resources will be available for the water sector. The Water Research Act will therefore be retained as an important part of the family of water legislation. Appropriate directives will make sure that WRC funds are used to further the objectives of the national water policy, especially in social and economic areas.