On 17 November 2023 the Department of Water and Sanitation published the long overdue suite of proposed amendments to the National Water Act, 1998 (the Act). If the draft National Water Amendment Bill (B – 2023) (the Bill) is adopted in its current form it may address some of the most pertinent gaps and legislative challenges experienced in the water sector, particularly in relation to the equitable allocation of water resources and a streamline regulation of the water and sanitation value chain. To achieve this, the Bill aims to strengthen accountability for water service providers and introduce transparency.
The Act is one of the corner stones in South Africa’s environmental legal framework. It was originally enacted to promote the progressive realisation of the rights to health care, food, water and social security which are all entrenched under section 27 of the Constitution of the Republic of South African, 1996. The purpose of the Act is to ensure the Nation’s water resources are protected, used, developed, conserved, managed and controlled in a manner which takes into account, amongst others, the basic human needs of current and future generations, equitable access to water and the facilitation of social and economic development.
The recent Bill introduces several new amendments to the Act. In addition to the insertion and amendment of certain definitions, the Bill seeks to amend the Act by:
- ensuring equitable water allocation and to optimise the use of water in support of the guiding principles of the National Water Act;
- prohibiting undesirable consequences of private water trading;
- elaborating on the purpose of the Act;
- providing for the review period of the national water resource strategy to be increased to 10 years;
- providing for the periodic review of the determination of a class of a water resource and a water resource quality objectives;
- providing for the period for review of the water Reserve;
- providing for the protection of water source areas;
- providing for the transfer of water use authorisations;
- providing for the reallocation of water;
- providing for the making of regulations;
- repealing the right to declare an existing lawful water use;
- providing for an additional controlled activity being the exploration or production of onshore naturally occurring hydrocarbons that require stimulation, including but not limited to, fracturing and/or underground gasification, to extract, and any activity incidental thereto that may impact detrimentally on the water resource;
- regulating the governance matters of water user associations and their membership thereof; and
- providing for the transformation of water user associations; and to provide for matters connected therewith.
Notably, the Bill includes proposed prohibitions on opencast and underground mining which may lead to acid rock drainage or acid mine drainage within water source areas that are threatened by or vulnerable to mining. The Bill prohibits the granting of water use licences in relation to such activities within the identified water source area. Prohibitions on the granting of water use licences in relation to water uses associated with forestry plantations and agriculture within specific areas are also proposed.
In addition, the Bill proposes provisions imposing criminal liability where the company or municipality by whom that director or municipal manager is employed is found guilty of an offence under section 151 of the Act. It is proposed that a court may make various orders including orders aimed at recovering the amount of loss or damage (to rehabilitate or prevent damage) and determining the monetary value of any advantage gained as a consequence of the offence in question and recovery therefore.
Interested and affected persons have until 16 January 2024 to submit written comments on the draft amendment Bill to the Director General of the Department of Water and Sanitation.
For further information, please contact:
Ernst Muller, Herbert Smith Freehills
ernst.muller@hsf.com
