National Water Act, 1998
Act 36 of 1998
- Published in Government Gazette 19182 on 26 August 1998
- Assented to on 20 August 1998
- There are multiple commencements
- [This is the version of this document as it was from 6 December 1999 to 1 September 2014.]
|Chapter 1 (section 1–4); Chapter 2 (section 5–11); Chapter 3 (section 12–20); Chapter 4, Part 1 (section 21–26); Part 2 (section 27–31); Part 3, section 32, section 34–35; Part 4 (section 36); Part 6 (section 39); Part 8 (section 43–48); Part 9 (section 49–52); Part 10 (section 53–55); Chapter 5, Part 2 (section 61–62); Chapter 6 (section 63–76); Chapter 7 (section 77–90); Chapter 8 (section 91–98); Chapter 9 (section 99–101); Chapter 10 (section 102–108); Chapter 11 (section 109–116); Chapter 12 (section 117–123); Chapter 13 (section 124–136); Chapter 14 (section 137–145); Chapter 15 (section 146–150); Chapter 16 (section 151–155); Chapter 17, Part 1 (section 156–159); Part 2, section 160–162, section 163(2), 163(3), 163(4), section 164||
commenced on 1 October 1998
by Proclamation R95 of 1998.
Note: Date of commencement of sections 1-32, 34-36, 39, 43-55 and 61-164 and all Schedules except certain items of Schedule 7
|Chapter 4, Part 3, section 33(1), 33(2), 33(3)||commenced on 1 January 1999 by Proclamation 131 of 1998.|
|Chapter 4, Part 3, section 33(4); Part 5 (section 37–38); Part 7 (section 40–42); Chapter 5, Part 1 (section 56–60); Chapter 17, Part 2, section 163(1)||
commenced on 1 October 1999
by Proclamation R102 of 1999.
Note: Date of commencement of sections 33(4), 37, 38, 40-42, 56-60 and 163(1), remaining items of Schedule 7
|Chapter 4, Part 3, section 32(1)(a)(i), 32(1)(a)(ii), 32(1)(a)(iii)||commenced on 6 December 1999.|
- [Amended by National Water Amendment Act, 1999 (Act 45 of 1999) on 6 December 1999]
Chapter 1This Chapter sets out the fundamental principles of the Act. Sustainability and equity are identified as central guiding principles in the protection, use, development, conservation, management and control of water resources. These guiding principles recognise the basic human needs of present and future generations, the need to protect water resources, the need to share some water resources with other countries, the need to promote social and economic development through the use of water and the need to establish suitable institutions in order to a thieve the purpose of the Act. National Government, acting through the Minister, is responsible for the achievement of these fundamental principles in accordance with the Constitutional mandate for water reform. Being empowered to act on behalf of the nation, the Minister has the ultimate responsibility to fulfil certain obligations relating to the use, allocation and protection of and access to water resources.
Interpretation and fundamental principles
This Chapter also contains definitions explaining the meaning of certain words used in the Act as well as provisions regarding the interpretation of the Act.
1. Definitions and interpretation
2. Purpose of ActThe purpose of this Act is to ensure that the nation's water resources are protected, used, developed, conserved, managed and controlled in ways which take into account amongst other factors—
3. Public trusteeship of nation’s water resources
4. Entitlement to water use
Chapter 2This Chapter deals with the development of strategies to facilitate the proper management of water resources.
Water management strategies
Part 1 – National water resource strategyPart 1 requires the progressive development, by the Minister, after consultation with society at large, of a national water resource strategy. The national water resource strategy provides the framework for the protection, use, development, conservation, management and control of water resources for the country as a whole. It also provides the framework within which water will be managed at regional or catchment level, in defined water management areas. The national water resource strategy, which must be formally reviewed from time to time, is binding on all authorities and institutions exercising powers or performing duties under this Act.
5. Establishment of national water resource strategy
6. Contents of national water resource strategy
7. Giving effect to national water resource strategyThe Minister, the Director-General, an organ of state and a water management institution must give effect to the national water resource strategy when exercising any power or performing any duty in terms of this Act.
Part 2 – Catchment management strategiesPart 2 requires every catchment management agency to progressively develop a catchment management strategy for the water resources within its water management area Catchment management strategies must be in harmony with the national water resource strategy. In the process of developing this strategy, a catchment management agency must seek co-operation and agreement on water-related matters from the various stakeholders and interested persons. The catchment management strategy, which must be reviewed from time to time, will include a water allocation plan. A catchment management strategy must set principles for allocating water to existing and prospective users, taking into account all matters relevant to the protection, use, development, conservation, management and control of water resources.
8. Establishment of catchment management strategies
9. Contents of catchment management strategyA catchment management strategy must—
10. Guidelines for and consultation on catchment management strategies
11. Giving effect to catchment management strategiesThe Minister and the catchment management agency concerned must give effect to any catchment management strategy established under this Part when exercising any power or performing any duty in terms of this Act.
Chapter 3The protection of water resources is fundamentally related to their use, development, conservation, management and control. Parts 1, 2 and 3 of this Chapter lay down a series of measures which are together intended to ensure the comprehensive protection of all water resources. These measures are to be developed progressively within the contexts of the national water resource strategy and the catchment management strategies provided for in Chapter 2. Parts 4 and 5 deal with measures to prevent the pollution of water resources and measures to remedy the effects of pollution of water resources.
Protection of water resources
Part 1 – Classification system for water resourcesPart 1 provides for the first stage in the protection process, which is the development by the Minister of a system to classify the nation’s water resources. The system provides guidelines and procedures for determining different classes of water resources.
12. Prescription of classification system
Part 2 – Classification of water resources and resource quality objectivesUnder Part 2 the Minister is required to use the classification system established in Part I to determine the class and resource quality objectives of all or part of water resources considered to be significant. The purpose of the resource quality objectives is to establish clear goals relating to the quality of the relevant water resources. In determining resource quality objectives a balance must be sought between the need to protect and sustain water resources on the one hand, and the need to develop and use them on the other. Provision is made for preliminary determinations of the class and resource quality objectives of water resources before the formal classification system is established. Once the class of a water resource and the resource quality objectives have been determined they are binding on all authorities and institutions when exercising any power or performing any duty under this Act.
13. Determination of class of water resources and resource quality objectives
14. Preliminary determination of class or resource quality objectives
15. Giving effect to determination of class of water resource and resource quality objectivesThe Minister, the Director-General, an organ of state and a water management institution, when exercising any power or performing: any duty in terms of this Act, must give effect to any determination of a class of a water resource and the resource quality objectives as determined in terms of this Part and any requirements for complying with the resource quality objectives.
Part 3 – The ReservePart 3 deals with the Reserve, which consists of two parts — the basic human needs reserve and the ecological reserve. The basic human needs reserve provides for the essential needs of individuals served by the water resource in question and includes water for drinking, for food preparation and for personal hygiene. The ecological reserve relates to the water required to protect the aquatic ecosystems of the water resource. The Reserve refers to both the quantity and quality of the water in the resource, and will vary depending on the class of the resource. The Minister is required to determine the Reserve, for all or part of any significant water resource. If a resource has not yet been classified, a preliminary determination of the Reserve may be made and later superseded by a new one. Once the Reserve is determined for a water resource is binding in the same way as the class and the resource quality objectives.
16. Determination of Reserve
17. Preliminary determinations of Reserve
18. Giving effect to ReserveThe Minister, the Director-General, an organ of state and a water management institution, must give effect to the Reserve as determined in terms of this Part when exercising any power or performing any duty in terms of this Act.
Part 4 – Pollution preventionPart 4 deals with pollution prevention, and in particular the situation where pollution of a water resource occurs or might occur as a result of activities on land. The person who owns, controls, occupies or uses the land in question is responsible for taking measures to prevent pollution of water resources. If these measures are not taken, the catchment management agency concerted may itself do whatever is necessary to prevent the pollution or to remedy its effects, and to recover all reasonable costs from the persons responsible for the pollution.
19. Prevention and remedying effects of pollution
Part 5 – Emergency incidentsPart 5 deals with pollution of water resources following an emergency incident, such as an accident involving the spilling of a harmful substance that finds or may find its way into a water resource. The responsibility for remedying the situation rests with the person responsible for the incident or the substance involved. If there is a failure to act, the relevant catchment management agency may take the necessary steps and recover the costs from every responsible person.
20. Control of emergency incidents
Chapter 4As this Act is founded on the principle that National Government has overall responsibility for and authority over water resource management, including the equitable allocation and beneficial use of water in the public interest, a person can only be entitled to use water if the use is permissible under the Act. This Chapter is therefore of central significance to the Act, as it lays the basis for regulating water use. The various types of licensed and unlicensed entitlements to use water are dealt with in detail.
Use of water
Part 1 – General principlesThis Part sets out general principles for regulating water use. Water use is defined broadly, and includes taking and storing water, activities which reduce stream flow, waste discharges and disposals, controlled activities (activities which impact detrimentally on a water resource), altering a watercourse, removing water found underground for certain purposes, and recreation. In general a water use must be licensed unless it is listed in Schedule I, is an existing lawful use, is permissible under a general authorisation, or if a responsible authority waives the need for a licence. The Minister may limit the amount of water which a responsible authority may allocate. In making regulations the Minister may differentiate between different water resources, classes of water resources and geographical areas.
21. Water useFor the purposes of this Act, water use includes—
22. Permissible water use
23. Determination of quantity of water which may be allocated by responsible authority
24. Licences for use of water found underground on property of another personA licence may be granted to use water found underground on land not owned by the applicant if the owner of the land consents or if there is good reason to do so.
25. Transfer of water use authorisations
26. Regulations on use of water
Part 2 – Considerations, conditions and essential requirements of general authorisations and licencesThis Part deals with matters relevant to all general authorisations and licences issued under the Act. It guides responsible authorities in the exercise of their discretion to issue and to attach conditions to general authorisations and licences. It also sets out the essential features of licences, such as effective periods, purposes and places for which they may be issued, and the nature of conditions that maybe attached to them. The granting of a licence does not imply any guarantee regarding the availability or quality of water which it covers.
27. Considerations for issue of general authorisations and licences
28. Essential requirements of licences
29. Conditions for issue of general authorisations and licences
30. Security by applicant
31. Issue of licence no guarantee of supplyThe issue of a licence to use water does not imply a guarantee relating to—
Part 3 – Existing lawful water usesThis Part permits the continuation under certain conditions of an existing water use derived from a law repealed by this Act. An existing lawful water use, with any conditions attached, is recognised but may continue, only to the extent that it is not limited, prohibited or terminated by this Act. No licence is required to continue with an existing lawful water use until a responsible authority requires a person claiming such an entitlement to apply for a licence. If a licence is issued it becomes the source of authority for the water use. If a licence is not granted the use is no longer permissible.
32. Definition of existing lawful water use
33. Declaration of water use as existing lawful water use
34. Authority to continue with existing lawful water use
35. Verification of existing water uses
Part 4 – Stream flow reduction activitiesThis Part allows the Minister, after public consultation, to regulate land-based activities which reduce stream flow, by declaring such activities to be stream flow reduction activities. Whether or not an activity is declared to be a stream flow reduction activity depends on various factors, such as the extent of stream flow reduction, its duration, and its impact on any relevant water resource and on other water users. The control of forestry for its impact on water resources, currently exercised in terms of the Forest Act, is now exercised under this Part.
36. Declaration of stream flow reduction activities
Part 5 – Controlled activitiesThis Part allows the Minister to regulate activities having a detrimental impact on water resources by declaring them to be controlled activities. Four such activities — irrigation using waste or water containing waste from certain sources, modification of atmospheric precipitation, altering the flow regime of a water resource as a result of power generation, and aquifer recharge using waste or water containing waste — are identified in the Act as controlled activities. Provision is made for the Minister to declare other controlled activities as the need arises, but in these cases public consultation is required. Following the identification or declaration of a controlled activity an authorisation for that particular category of activity is required under this Act.
37. Controlled activity
38. Declaration of certain activities as controlled activities
Part 6 – General authorisationsThis Part establishes a procedure to enable a responsible authority, after public consultation, to permit the use of water by publishing general authorisations in the Gazette. A general authorisation may be restricted to a particular water resource, a particular category of persons, a defined geographical area or a period of time, and requires conformity with other relevant laws. The use of water under a general authorisation does not require a licence until the general authorisation is revoked, in which case licensing will be necessary. A general authorisation does not replace or limit an entitlement to use water, such as an existing lawful water use or a licence, which a person may otherwise have under this Act.
39. General authorisations to use water
Part 7 – Individual applications for licencesThis Part sets out the procedures which apply in all cases where a licence is required to use water, but where no general invitation to apply for licences has been issued under Part 8. Water users who are not required to license their use, but who wish to convert the use to licensed use, may also use the procedure set out in this Part, but the responsible authority may decline to grant a licence when the applicant is entitled to the use of water under an existing lawful use or by a general authorisation. In considering an application a responsible authority may require additional information from the applicant, and may also require the applicant to undertake an environmental or other assessment, which assessments may be subject to independent review.
40. Application for licence
41. Procedure for licence applications
42. Reasons for decisionsAfter a responsible authority has reached a decision on a licence application, it must promptly—
Part 8 – Compulsory licences for water use in respect of specific resourceThis Part establishes a procedure for a responsible authority to undertake compulsory licensing of any aspect of water use in respect of one or more water resources within a specific geographic area. It includes requirements for a responsible authority to prepare schedules for allocating quantities of water to existing and new users. The procedure is intended to be used in areas which are, or are soon likely to be, under "water stress" (for example where the demands for water are approaching or exceed the available supply, where water quality problems are imminent or already exist, or where the water resource quality is under threat,), or where it is necessary to review prevailing water use to achieve equity of access to water.
In such cases the responsible authority must publish a notice in the Gazette and other appropriate media, requiring people to apply for licences in the designated area. Applicants may be required to submit additional information, and may also be required to undertake an environmental or other assessment, which assessment may be subject to independent review.
In determining the quantities of water to be allocated to users, the responsible authority must consider all applications received, and draw up a schedule detailing how the available water will be allocated among the applicants. In drawing up an allocation schedule the responsible authority must comply with the plans, strategies and criteria set out elsewhere in the Act and must give special consideration to certain categories of applicants. A responsible authority need not allocate all the available water in a water resource, and may reserve some of the water for future needs. Provision is also made for any water still available after the requirements of the Reserve, international obligations and corrective action have been met to be allocated on the basis of public auction or tender. A system of objections and appeals in relation to proposed and preliminary allocation schedules ensures that licences may be issued only after the allocation schedule has been finalised.
Licences issued under this Part replace previous elements to any existing lawful water use by the applicant.
43. Compulsory licence applications
44. Late applicationsA responsible authority may, for good reason, condone a late application and charge a reasonable additional fee for processing the late application.
45. Proposed allocation schedules
46. Preliminary allocation schedules
47. Final allocation schedule
48. Licences replace previous entitlements
Part 9 – Review and renewal of licences, and amendment and substitution of conditions of licencesThis Part deals with the review and renewal of licences, and the amendment and substitution of their conditions. Review of a licence is by the relevant responsible authority, at periods stipulated in the licence as part of a general review process.
A review of a licence may lead to the amendment or substitution of its conditions, but only if certain requirements are satisfied. If the intendment or substitution of conditions severely prejudices the economic viability of any undertaking in respect of which the licence was issued there is a claim for compensation. Minor amendments to licences (for instance, to correct clerical mistakes, or ranges in format), and those agreed to by the licensee may be made outside of the review process. In addition, a licensee may apply to the responsible authority for the renewal or amendment of a licence before it expires. In considering such applications the responsible authority must again consider the matters dealt with in the initial application, and there are limitations to the new conditions to which the licence may be subjected.
49. Review and amendment of licences
50. Formal amendment of licences
52. Procedure for earlier renewal or amendment of licences
Part 10 – Contravention of or failure to comply with authorisationsThis Part deals with the consequences of contravention of licence conditions. These range from the responsible authority requiring the licensee to take remedial action, failing which it may take the necessary action and recover reasonable costs from that person, to the suspension or withdrawal of a licence. Where a licensee offers to surrender a licence the responsible authority is obliged to accept the surrender and cancel the licence unless there is good reason for refusal.
53. Rectification of contraventions
54. Suspension or withdrawal of entitlements to use water
55. Surrender of licence
Chapter 5This Chapter deals with the measures to finance the provision of water resource management services as well as financial and economic measures to support the implementation of strategies aimed at water resource protection, conservation of water and the beneficial use of water.
Part 1 – Water use chargesIn terms of Part 1 the Minister may from time to time, after public consultation, establish a pricing strategy which may differentiate among geographical areas, categories of water users or individual water users. The achievement of social equity is one of the considerations in setting differentiated charges. Water use charges are to be used to fund the direct and related costs of water resource management, development and use, and may also be used to achieve an equitable and efficient allocation of water. In addition, they may also be used to ensure compliance with prescribed standards and water management practices according to the user pays and polluter pays principles. Water use charges will be used as a means of encouraging reduction in waste, and provision is made for incentives for effective and efficient water use. Non-payment of water use charges will attract penalties, including the possible restriction or suspension of water supply from a waterwork or of an authorisation to use water.
56. Pricing strategy for water use charges
57. Application of pricing strategy
58. Recovery of water use charges
59. Liability for water use charges
60. Water use charges are charges on land
Part 2 – Financial assistancePart 2 deals with financial assistance, which may be granted once certain considerations are taken into account.
61. Financial assistance by Minister
62. Regulations on financial assistanceThe Minister may make regulations concerning—
General powers and duties of Minister and Director-General
Part 1 – Delegations, directives, expropriation, condonation and additional powersPart 1 of this Chapter sets out various powers and duties of the Minister which are of a general nature, such as the powers of delegation and expropriation, and intervention in litigation. More specific powers and duties are dealt with elsewhere in the Act.
63. Delegation of powers and duties by Minister
64. Expropriation of property
65. Expropriation for rehabilitation and other remedial work
66. Condonation of failure to comply with time periodThe Minister may, in exceptional circumstances and for a good reason, extend a time period or condone a failure to comply with a time period.
67. Dispensing with certain requirements of Act
68. Intervention in litigationThe Minister may intervene in litigation before a court or in a hearing before the Water Tribunal with regard to any matter contemplated in this Act.
Part 2 – General provisions regarding regulationsPart 2 requires the Minister to consult with the public when making regulations under this Act, and also to submit regulations for scrutiny by the National Assembly and by the National Council of Provinces. If the National Assembly rejects a regulation it must be repealed or amended.
69. Making of regulations
70. Consideration of regulations
71. Rejected regulations
Part 3 – Powers relating to catchment management agenciesThe Minister has the responsibility to manage and authorise the use of the nation’s water resources. This means that the Minister fulfils the functions of a catchment management agency in a water management area for which no catchment management agency is established, or where such an agency has been established but is not functional. The Minister may dispense with certain requirements of this Act for as long as is necessary to deal with an urgent situation or an emergency.
72. Powers and duties of catchment management agencies vest in Minister in certain circumstances
73. Assignment of powers and duties to catchment management agencies
74. Directives to water management institutions
Part 4 – Powers of Director-General
75. Delegation of powers by Director-GeneralThe Director-General may, for the purposes of this Act, in writing and subject to conditions, delegate a power, including a power granted or delegated to the Director-General under this Act, to—
76. Appointment of persons on contract
Chapter 7This Chapter provides for the progressive establishment by the Minister of catchment management agencies. The purpose of establishing these agencies is to delegate water resource management to the regional or catchment level and to involve local communities, within the framework of the national water resource strategy established in terms of Chapter 2. Whilst the ultimate aim is to establish catchment management agencies for all water management areas, the Minister acts as the catchment management agency where one has not been established. Where the necessary capacity does not exist to establish a catchment management agency, an advisory committee may be appointed under Chapter 9 to develop the necessary capacity as a first step towards establishing an agency.
Catchment management agencies
Part 1 – Establishment and powers of catchment management agenciesUnder Part 1 a catchment management agency may be established for a specific water management area, after public consultation, on the initiative of the community and stakeholders concerned. In the absence of such a proposal the Minister may establish a catchment management agency on the Minister’s own initiative. The provisions of Schedule 4, on institutional and management planning, apply to a catchment management agency.
77. Proposal for establishment of catchment management agency
78. Procedure for establishment of catchment management agencies
79. General powers and duties of catchment management agencies
80. Initial functions of catchment management agenciesSubject to Chapter 2 and section 79, upon the establishment of a catchment management agency, the initial functions of a catchment management agency are—
Part 2 – Governing board of catchment management agenciesPart 2 describes the appointment of members of the governing board of a catchment management agency. The board of a catchment management agency will be constituted in such a way that interests of the various stakeholders are represented or reflected in a balanced manner, and the necessary expertise to operate effectively is provided. Members of the governing board can be elected or nominated by the different water user groups for appointment by the Minister, and the Minister may of his or her own accord appoint further members. The Minister may also remove board members for good reason.
81. Appointment of governing board of catchment management agency
82. Chairperson, deputy chairperson, chief executive officer and committees of catchment management agency
83. Removal of members from governing board
Part 3 – Operation of catchment management agenciesPart 3 deals with the functions and operation of catchment management agencies. Initial functions, dealt with in Part 2, include the investigation of and advice on water resources, the co-ordination of the related activities of other water management institutions within its water management area, the development of a catchment management strategy and the promotion of community participation in water resource management within its water management area. Additional powers and duties described in Schedule 3 may be assigned or delegated to agencies such as to establish water use rules and management systems, to direct users to terminate illegal uses of water, and to temporarily limit the use of water during periods of shortage.
A catchment management agency may be financed by the state from water use charges made in its water management area or from any other source.
84. Funding of catchment management agencies
85. Documents relating to litigationA catchment management agency must provide the Director-General with copies of all pleadings, affidavits and other documents in the possession of the catchment management agency relating to any proceedings instituted against that catchment management agency.
86. Delegation of powers by catchment management agency
Part 4 – Intervention, disestablishment or change of water management areas of catchment management agenciesPart 4 enables the Minister to disestablish a catchment management agency or make changes to its water management area, for reasons which include the need to reorganise water management institutions for more effective water resource management. An agency may also be disestablished if it does not operate effectively.
87. Intervention by Minister
88. Disestablishment of catchment management agency
89. Transfer of assets and liabilities after change of water management area or disestablishment
90. Regulations on catchment management agencies
Chapter 8This Chapter deals with the establishment, powers and disestablishment of water user associations. Although water user associations are water management institutions their primary purpose, unlike catchment management agencies, is not water management. They operate at a restricted localised level, and are in effect co-operative associations of individual water users who wish to undertake water-related activities for their mutual benefit. A water user association may exercise management powers and duties only if and to the extent these have been assigned or delegated to it. The Minister establishes and disestablishes water user associations according to procedures set out in the Chapter. A water user association for a particular purpose would usually be established following a proposal to the Minister by an interested person, but such an association may also be established on the Minister’s initiative. The functions of a water user association depend on its approved constitution, which can be expected to conform to a large extent to the model constitution in Schedule 5. This Schedule also makes detailed provisions for the management and operation of water user associations. Although water user associations must operate within the framework of national policy and standards, particularly the national water resource strategy, the Minister may exercise control over them by giving them directives or by temporarily taking over their functions under particular circumstances.
Water user associations
Existing irrigation boards, subterranean water control boards and water boards established for stock watering purposes will continue in operation until they are restructured as water user associations.
91. Proposal for establishment of water user association
92. Procedure for establishment of water user association
93. Constitution of water user association
94. Powers of water user association
95. Directives to water user association
96. Disestablishment of water user association
97. Winding up affairs of disestablished water user association
98. Transitional provisions for certain existing organisations
Chapter 9This Chapter empowers the Minister to establish advisory committees. Each advisory committee will be established for a particular purpose, and it is therefore possible for a variety of advisory committees to be established with different purposes and functions. Although primarily advisory in nature, such committees may exercise powers which are delegated to them. The Minister may amend the functions of an advisory committee, or disestablish it. Certain existing advisory committees will continue to function as though they were advisory committees established under this Act.
99. Establishment of advisory committees
100. Regulations regarding advisory committeesThe Minister may by regulation establish terms of reference and any other rules concerning the membership, powers and duties and operation of a committee.
101. Transitional provisions relating to advisory committees
Chapter 10Under this Chapter the Minister may establish bodies to implement international agreements in respect of the management and development of water resources shared with neighbouring countries, and on regional co-operation over water resources. The governance, powers and duties of these bodies are determined by the Minister in accordance with the relevant international agreement, but they may also be given additional functions, and they may perform their functions outside the Republic.
International water management
Certain existing international bodies are deemed to be bodies established under this Act.