Proposed water amendments needed, but inconsistencies, enforcement need to be fixed

14th February 2024 By: Natasha Odendaal - Creamer Media Senior Deputy Editor

While some of the Department of Water and Sanitation’s (DWS’s) recently proposed water amendments, which have significant implications for water resource management and public access to water, are an important step in working towards clean and accessible water for all, some inconsistencies need to be ironed out before enactment.

This emerged during a virtual panel discussion hosted by WaterCAN, in collaboration with the University of Johannesburg's (UJ’s) Centre for Social Development in Africa (CSDA) and moderated by WaterCAN executive manager Dr Ferrial Adam, to discuss the DWS’s recently tabled proposed amendments to the National Water Act of 1998 (NWA) and the Water Services Act of 1997 (WSA).

The panelists on Tuesday urged the public to comment on the proposals, which were gazetted in November and aimed at strengthening and improving South Africa’s water sector, by March 1, after the DWS extended the public participation process from the initial deadline of January 16.

“This is the biggest overhaul since these Acts were promulgated,” said Water Research Commission research manager John Dini during the webinar, which delved into the proposed changes and their potential impact and implications.

Further, the changes were overdue, he said, noting that, since promulgation, the Acts had only been amended twice in the case of the WSA, which came into effect in 1997, and just once in the case of the NWA, which was promulgated a year later.

The NWA proposes changes include a new chapter surrounding the protection of water source areas, more commonly known as strategic water source areas; a package of measures to enhance redress and equity; the prohibition of permanent water trading; the transition into legislation of the policy-embedded concept of 'use it or lose it'; and the prioritisation of the redress of past discrimination when issuing licences.

It also touches on the restrictions of new registrations of existing lawful uses; membership, voting rights and operational areas of water user associations; and apportionment of individual liability, which means that directors and managers can face criminal charges if their company or municipality violates environmental laws.

The WSA amendments cover measures to improve the provision of water services; a better separation of water service authority and water service provider functions; the introduction of the licensing of water service providers; and enhanced interventions by the Water and Sanitation Minister when needed.

Further, the amendments of the Acts, which are the foundational statutes that define how water is managed, controlled, conserved and protected, besides others, in South Africa, are also converting into law some policy positions that have been approved since about 2013/14.

“There are certain things that were adopted back at that time, that could not be enforced until now because they had not been converted into law, so this is a big moment to do that,” Dini pointed out.

UJ CSDA senior researcher Dr Anthony Kaziboni said that, while the amendment Bills aimed to improve water resource management and service delivery, several concerns required attention before enactment.

Potential contradictions with existing legislation could invite legal challenges, hindering effective implementation, and inconsistencies within the water Bills raised constitutional and potential enforceability concerns.

He cited the example of the proposed director liability provision which does not align with the National Environmental Management Act of 1998 (Nema), which is the overarching law in South Africa upon which all other environmental laws are based.

“While this is quite progressive and we need to see some of those statutes go across legislation, there is a contradiction,” he pointed out, highlighting that, under Nema, directors could be prosecuted if they failed to take all reasonable steps to prevent an offence by the company, with reasonableness standards that provided them with possible defence, which the proposed water Bill eliminates, potentially imposing stricter accountability than what existed.

“There are conflicting issues around the jurisdiction where this Bill is introducing similar penalties to what exists in another Bill. So how can that be reconciled?”

A further dilemma is enforcement.

“The DWS has directives around the 'polluter must pay' principle and this has been contested [and] it has been disregarded.”

Kaziboni further said that the proposed racial quotas for water allocation raised concerns about discrimination and legality – and potential unintended consequences – and consideration needed to be given to any potential contradictions of the principles of equity, a potential breach of constitutional rights, the impact on efficient water allocations and management, the impact on existing users and the potential escalation of societal tensions and division.

Addressing historical injustices was critical; however, the proposed quotas in water licensing raised significant legal, practical and ethical concerns, and exploring alternative approaches and fostering inclusive dialogue was crucial before implementing such a complex policy.

“I am a strong supporter of transformation, it is very important, but we need to be cognisant of several other factors around the proposed changes, concerns that could be raised about discrimination and dignity and potentially contradicting the principle of equality.

“This does not mean that we should not fight for what we believe in but it is important that . . .we ensure that inconsistencies are ironed out.”

Another “worrying change” for Kaziboni is a lack of robust implementation and enforcement of existing regulations.

“The question that we have grappled with over and over again is to what extent do we revise the law to fix things that might be inherently flawed in legislation [and] to what extent do we revise the law to deal with problems with how the law has been implemented,” added Dini.

There were outdated aspects of the law that must be updated and there was a need to incorporate lessons learnt and court decisions that needed to be pulled through into law; however, there were still challenges in implementing the existing law.

“We do not want to rewrite the law in an attempt to fix the way the current law has been implemented if the law is fine,” he said.

“We need to ensure that current legislation is implemented,” Kaziboni said, recommending harmonising proposed changes with existing legislation and prioritising enforcement mechanisms alongside legal updates.

As legal updates were proposed, thorough impact assessments should be conducted, with data collected to inform policy decisions.

“Current legislation needs amendments that specifically address household water insecurity – a major challenge for many South Africans – as well as recognise the human right to water and the impact of climate change.

Policy and legislation needed to be grounded in an evidence-based understanding of water insecurity, particularly for marginalised communities and ignoring the growing impact of human activities on water access risked exacerbating the issue, he continued.

“Government should include communities in decisions. Many decisions are made without the communities. Changes in legislation need to take into account South Africa’s poor and marginalised,” said water justice activist Faeza Meyer, adding that the needs and requirements of community members and households were not all the same and a blanket approach should not be used.

“If we keep reminding who these laws are for, it would go so much better,” she said, noting that inequality abounds, where a small portion of a population, for example, uses the largest volumes of water.

The largest portion of the population used less water and was still being restricted, she said, outlining the harsh realities on the ground and noting that there was not enough water available, with communities forgoing water use for anything other than their very basic needs.

“We need to look at the discussion in a holistic approach.”