Water Services Bill | The Water Page

Published in the Government Gazette – 23 May 1997 Notes: New draft legislation for the regulating of the provision of water services, including water supply, sanitation and waste water disposal in South Africa. This is “enabling” or “framework” legislation covering such issues as standards & tariffs, the establishment of water service authorities, water boards (utility companies), local level water service committees, monitoring and intervention, the establishment of a national information system and other issues. The Bill was published for public comment in the Government Gazette on 23 May 1997. The Bill will now be examined by the Agriculture, Water Affairs and Forestry Portfolio Committee of the South African Parliament, which will include public hearings and submissions. The Chairperson of the committee is Ms Janet Love who may be contacted at jlove@anc.org.za B I L L To provide for the right of access to basic water supply and basic sanitation; to provide for the setting of national standards and norms and standards for tariffs; to provide for water services development plans; to provide a regulatory framework for water services institutions and water services intermediaries; to provide for the establishment and disestablishment of water boards and water services committees and their powers and duties; to provide for the monitoring of water services and intervention by the Minister or by the relevant Province; to provide for financial assistance to water services institutions; to provide for certain powers to the Minister; to provide for the gathering of information in a national information system and the distribution of that information; to repeal certain laws; and to provide for matters connected therewith. PREAMBLE RECOGNISING the right of all South Africans to basic water supply and basic sanitation necessary to afford them sufficient water and an environment not harmful to their health or well-being; ACKNOWLEDGING that there is a duty on all spheres of Government to ensure that water supply services and sanitation services are provided in a manner which is efficient, equitable and sustainable; ACKNOWLEDGING that all spheres of Government must strive to provide water supply services and sanitation services sufficient for subsistence and sustainable economic activity; ACKNOWLEDGING that although municipalities have authority to administer water services, all spheres of Government have a duty, within the limits of physical and financial feasibility, to work towards this object; RECOGNISING that the provision of water services, although an activity distinct from the overall management of water resources, must be undertaken in a manner consistent with the broader goals of water resource management; RECOGNISING that water services are often provided in monopoly or near monopoly circumstances and that the interests of consumers and the broader goals of public policy must be promoted; and CONFIRMING the National Government’s role as custodian of the nation’s water resources; BE IT ENACTED by the Parliament of the Republic of South Africa as follows:— ARRANGEMENT OF SECTIONS CHAPTER I Introductory provisions   Section 1. Definitions 2. Main objects of Act 3. Right of access to basic water supply and basic sanitation 4. Conditions for provision of water services 5. Preference to provision of basic water supply and basic sanitation 6. Access to water services through nominated water services provider 7. Access to water for industrial use 8. Approvals and appeal CHAPTER II Standards and tariffs 9. Standards 10. Norms and standards for tariffs CHAPTER III Water services authorities 11. Duty to provide access to water services 12. Monitoring performance of water services providers and water services intermediaries 13. Duty to prepare draft water services development plan 14. Contents of draft water services development plan 15. Notice of draft water services development plan 16. Adoption of water services development plan 17. New development plan 18. Deviation from development plan 19. Reporting on implementation of development plan 20. Contracts with water services providers 21. Water services authority acting as water services provider 22. Bylaws CHAPTER IV Water services providers 23. Approval to operate as water services provider 24. Water services provider must give information CHAPTER V Water services intermediaries 25. Registration of water services intermediaries 26. Duties of water services intermediaries 27. Default by water services intermediaries CHAPTER VI Water boards 28. Establishment and disestablishment of water boards 29. Primary activity of water boards 30. Other activities of water boards 31. Powers of water boards 32. Duties of water boards 33. Conditions for provision of services 34. Parameters for functions of water boards 35. Governance of water boards 36. Chief executive of water boards 37. Delegation of powers 38. Duties of members of water boards 39. Policy statement 40. Business plan 41. Directives to water boards 42. Different activities to be managed as separate units 43. Financial matters and accounts 44. Reporting 45. Provision of information 46. Assets and liabilities upon disestablishment 47. Litigation against water board 48. Formal irregularities 49. Regulations 50. Effect of inclusion of Chapter in Act CHAPTER VII Water services committees 51. Establishment and disestablishment of water services committees 52. Main function of water services committees 53. Powers of water services committees 54. Conditions for provision of services 55. Governance of water services committees 56. Duties of committee members 57. Financial matters and accounts 58. Formal irregularities 59. Provision of information 60. Assets and liabilities upon disestablishment 61. Regulations CHAPTER VIII Monitoring and intervention 62. Monitoring of water services institutions 63. Intervention CHAPTER IX Financial assistance to water services institutions 64. Power of Minister 65. Applications for financial assistance 66. Regulations on financial assistance CHAPTER X National information system 67. Establishment of national information system 68. Purpose of national information system 69. Provision of information 70. Funding of national information system CHAPTER XI General powers and duties of Minister 71. Procedure for making regulations 72. Consultation by Minister 73. General powers of Minister 74. Delegation of powers 75. Appeals 76. Advisory committees CHAPTER XII General provisions 77. Transferability of servitudes 78. Ownership of waterworks 79. Entry and inspection of property 80. Expropriation 81. Offences 82. State bound 83. Repeal of laws and savings 84. Short title CHAPTER I Introductory provisions Definitions 1. In this Act, unless the context shows that another meaning is intended— (i) “approve” means approve in writing, and “approval” has a corresponding meaning; (ii) “basic sanitation” means the prescribed minimum standard of sanitation services necessary for the safe, hygienic and adequate collection, removal, disposal or purification of human excreta, domestic waste-water and sewage from households; (iii) “basic water supply” means the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households; (iv) “consumer” means any end user who receives water services from a water services institution; (v) “consumer installation” means a pipeline, meter, fitting or apparatus installed or used by a consumer to gain access to water services; (vi) “development plan” means a water services development plan prepared in terms of this Act; (vii) “disposal of industrial effluent” means the collection, removal, disposal or purification of effluent emanating from industrial use of water; (viii) “industrial use” means the use of water for mining, manufacturing, generation of electricity, transport and construction; (ix) “Minister” means the Minister of Water Affairs and Forestry; (x) “person” includes a water services institution; (xi) “prescribe” means prescribe by regulation; (xii) “Province” means the Member of the Executive Council responsible for local government in the Province concerned; (xiii) “regulation” means a regulation made under this Act; (xiv) “sanitation services” means the collection, removal, disposal or purification of human excreta, domestic waste-water and sewage; (xv) “this Act” includes the regulations; (xvi) “water services” means water supply services and sanitation services; (xvii) “water services authority” means any municipality responsible for ensuring access to water services; (xviii) “water services institution” means a water services authority, a water services provider, a water board and a water services committee; (xix) “water services intermediary” means any person who is obliged to provide water services to another in terms of a contract where the obligation to provide water services is incidental to the main object of that contract; (xx) “water services provider” means any person who provides water services to consumers, but does not include a water services intermediary; (xxi) “water services work” means a reservoir, dam, well, pumphouse, borehole, access road, pumping installation, electricity transmission line, pipeline, meter, fitting or apparatus built, installed or used by a water services institution to provide water services; (xxii) “water supply services” means the abstraction, conveyance, treatment and distribution of potable water or water intended to be converted to potable water. Main objects of Act 2. The main objects of this Act are to provide for— (a) the right of access of all South Africans to basic water supply and basic sanitation necessary to afford them sufficient water and an environment not harmful to their health or well-being; (b) the setting of national standards and norms and standards for tariffs in respect of water services; (c) the preparation and adoption of water services development plans by water services authorities; (d) a regulatory framework for water services institutions and water services intermediaries; (e) the establishment and disestablishment of water boards and water services committees and their duties and powers; (f) the monitoring of water services and intervention by the Minister or by the relevant Province; (g) financial assistance to water services institutions; and (h) the gathering of information in a national information system and the distribution of that information. Right of access to basic water supply and basic sanitation 3. (1) Everyone has a right of access to basic water supply and basic sanitation. (2) Every water services authority must— (a) take reasonable measures to realise this right; and (b) provide for those measures in its development plan. Conditions for provision of water services 4. (1) Water services must be provided in terms of conditions set by the water services provider. (2) These conditions must— (a) be accessible to the public; (b) accord with conditions for the provision of water services contained in bylaws made by the water services authority having jurisdiction in the area in question; and (c) the conditions must provide for— (i) the technical conditions of supply; (ii) the determination and structure of tariffs; (iii) the conditions for payment; and (iv) the circumstances under which water services may be limited or discontinued. (3) Procedures for limitation or discontinuation of water services must— (a) be fair and equitable; and (b) provide for a reasonable warning of limitation or discontinuation unless— (i) other consumers are prejudiced; (ii) there is an emergency situation; or (iii) the consumer has interfered with a limited or discontinued service. (4) Every person who uses water services provided by a water services provider does so subject to any applicable condition set by that water services provider. (5) Where one water services institution provides water services to another water services institution, it may not limit or discontinue those services if the effect would be that basic water supply and basic sanitation will no longer be available, unless it has given at least 30 days notice in writing of its intention to do so to— (a) the other water services institution; (b) the relevant Province; and (c) the Minister. Preference to provision of basic water supply and basic sanitation 5. If a water services institution is unable to meet the requirements of all its consumers, it must give preference to the provision of basic water supply and basic sanitation. Access to water services through nominated water services provider 6. (1) Subject to subsection (2) no person may use water services from a source other than a water services provider nominated by the water services authority having jurisdiction in the area in question, without the approval of that water services authority. (2) Any person who, at the commencement of this Act, was using water services from a source other than one nominated by the relevant water services authority, may continue with such use but must apply for approval within five years from the date of commencement of this Act and, if the approval is refused, switch to the services of the nominated water services provider within a period specified by the water services authority. Access to water for industrial use 7. (1) Subject to subsection (3) no person may obtain water for industrial use from any source other than the distribution system of a water services provider nominated by the water services authority having jurisdiction in the area in question, without the approval of that water services authority. (2) Subject to subsection (3) no person may dispose of industrial effluent in any manner other than that approved by the water services provider nominated by the water services authority having jurisdiction in the area in question. (3) Any person who, at the commencement of this Act, was— (a) using water for industrial use; or (b) disposing of industrial effluent, in a manner which requires the approval of a water services authority, may so continue but must apply for approval within five years from the date of commencement of this Act, and if approval is refused, switch to the manner approved by the water services authority within a specified period. (4) No approval given by a water services authority under this section relieves anyone from complying with any other law relating to— (a) the abstraction and use of water; or (b) the disposal of effluent. Approvals and appeal 8. (1) Any approval required from a water services authority in terms of section 6 or 7— (a) may not be unreasonably withheld; and (b) may be given subject to conditions, which— (i) must be reasonable; and (ii) may include a condition that water services must be provided to others. (2) In determining reasonableness under subsection (1), regard must be given to— (a) the cost; (b) the management; and (c) the quality and reliability, of the services in question. (3) An appeal lies to the Minister against any decision of a water services authority in terms of section 6 or 7 relating to the reasonableness of— (a) the withholding of any approval; or (b) any condition attached to any approval. (4) The Minister may on appeal confirm, vary or withdraw any decision of the water services authority. (5) Section 75 applies, with the necessary changes, to any appeal under subsection (3). CHAPTER II Standards and tariffs Standards 9. (1) The Minister may, from time to time, prescribe compulsory national standards relating to— (a) water services; (b) the quality of water taken from or discharged into any system; (c) the effective and sustainable use of water resources for water services; (d) the nature, operation, sustainability, operational efficiency and economic viability of water services; (e) qualifications of installers and operators of water services; and (f) the design, standards and quality of water services works and consumer installations. (2) Those standards may differentiate between different types of geographic areas, taking into account, among other factors, the socio-economic and physical attributes of each area. (3) In prescribing standards under subsection (1), the Minister must consider— (a) the need for everyone to have a reasonable quality of life; (b) the need for equitable access to water services; (c) the operational efficiency and economic viability of water services; (d) any applicable tariff for water services; (e) any other laws or any standards set by other governmental authorities; (f) any guidelines recommended by official standard-setting institutions; (g) any environmental impact of the water services; and (h) the obligations of the National Government as custodian of water resources. (4) Every water services institution must comply with national standards prescribed by the Minister. Norms and standards for tariffs 10. (1) The Minister may with the concurrence of the Minister of Finance, from time to time prescribe norms and standards in respect of tariffs for water services. (2) The norms and standards may differentiate on an equitable basis between— (a) different types of geographic areas, taking into account, among other factors, the socio-economic and physical attributes of each area; and (b) different types of water services. (3) In prescribing the norms and standards, the Minister must consider— (a) any national standards prescribed by him or her; (b) social equity; (c) the financial sustainability of the water services in the geographic area in question; (d) the recovery of costs reasonably associated with providing the water services; (e) the redemption period of any loans; and (f) the need for a return on capital invested. (4) No water services institution may use a tariff which is substantially different from any prescribed norms and standards. CHAPTER III Water services authorities Duty to provide access to water services 11. (1) Every water services authority has a duty to all consumers or potential consumers in its area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services. (2) This duty is subject to— (a) the availability of resources; (b) the need for an equitable allocation of resources to all consumers and potential consumers within the authority’s area of jurisdiction; (c) the need to regulate access to water services in an equitable way; (d) the duty of consumers to pay reasonable charges, which must be in accordance with any prescribed norms and standards for tariffs for water services; (e) the duty to conserve water resources; (f) the nature, topography, zoning and situation of the land in question; and (g) the right of the relevant water services authority to limit or discontinue the provision of water services if there is a failure to comply with reasonable conditions set for the provision of such services. (3) In ensuring access to water services, a water services authority must take into account— (a) alternative ways of providing access to water services; (b) the need for regional efficiency; (c) the need to achieve benefit of scale; (d) the need for low costs; and (e) the requirements of equity. (4) A water services authority may not unreasonably refuse or fail to give access to water services to a consumer or potential consumer in its area of jurisdiction. (5) In emergency situations a water services authority may provide basic water supply and basic sanitation free of charge to any person within its area of jurisdiction. (6) A water services authority may impose reasonable limitations on the use of water services. Monitoring performance of water services providers and water services intermediaries 12. Every water services authority must monitor the performance of water services providers and water services intermediaries within its area of jurisdiction. Duty to prepare draft water services development plan 13. (1) Within one year after the commencement of this Act, every water services authority must prepare a draft water services development plan for its area of jurisdiction as part of the process of preparing any integrated development plan in terms of the Local Government Transition Act, 1993 (Act No. 209 of 1993) and a summary of that plan. (2) The Minister may extend the one year period in respect of a water services authority in consultation with the Minister of Provincial Affairs and Constitutional Development and the relevant Province. Contents of draft water services development plan 14. Every draft water services development plan must contain details— (a) of the physical attributes of the area to which it applies; (b) of the size and distribution of the population within that area; (c) of a time frame for the plan, including the implementation programme for the next five years; (d) of existing water services, including the number and location of persons within the area who are not being provided with a basic water supply and basic sanitation; (e) regarding the future provision of water services, including— (i) the water services providers which will provide those water services; (ii) the contracts and proposed contracts with those water services providers; (iii) the proposed infrastructure necessary for the water services; (iv) the water sources to be used and the quantity of water to be obtained from and discharged into each source; and (v) the estimated capital and operating costs of those water services and the financial arrangements to fund those water services, including the tariff structures; (f) of the number and location of persons to whom water services cannot be provided within the next five years, setting out— (i) the reasons therefor; and (ii) the time frame within which it may reasonably be expected that a basic water supply and basic sanitation will be provided to those persons; and (g) of existing and proposed water conservation measures. Notice of draft water services development plan 15. (1) A water services authority must— (a) take reasonable steps to bring its draft water services development plan to the notice of its consumers and potential consumers; (b) invite written public comment thereon to be submitted within a reasonable time; and (c) send copies of the draft water services development plan and of all comments received thereon to the Minister, the relevant Province and all neighbouring water services authorities. (2) A copy of the draft water services development plan and of its summary must be— (a) available for inspection at the offices of the water services authority; and (b) obtainable against payment of a nominal fee. Adoption of water services development plan 16. (1) A water services authority must consider all comments received by it before adopting a water services development plan. (2) Notice that a water services development plan has been adopted must be published in the relevant Provincial Gazette. (3) A water services authority must supply a copy of every development plan to the Minister, the Minister for Provincial Affairs and Constitutional Development the relevant Province and all neighbouring water services authorities. (4) A copy of the development plan— (a) must be available for inspection at the offices of the water services authority; (b) must be obtainable against payment of a nominal fee; and (c) must form part of any integrated development plan as defined in and required by the Local Government Transition Act, 1993 (Act No. 209 of 1993). New development plan 17. A water services authority must adopt a new water services development plan at intervals determined by the Minister in consultation with the Minister for Provincial Affairs and Constitutional Development and the relevant Province, in accordance with the procedure set out in sections 13 to 16. Deviation from development plan 18. No substantial deviation from a development plan is valid unless it is embodied in a new development plan adopted in accordance with the procedure set out in sections 13 to 16. Reporting on implementation of development plan 19. (1) A water services authority must report on the implementation of its development plan during each financial year. (2) The report— (a) must be made within four months after the end of each financial year; and (b) must be given to the Minister, the Minister for Provincial Affairs and Constitutional Development the relevant Province and all neighbouring water services authorities. (3) The water services authority must publicise a summary of its report. (4) A copy of the report and of its summary must be— (a) available for inspection at the offices of the water services authority; and (b) obtainable against payment of a nominal fee. Contracts with water services providers 20. (1) A water services authority must either perform the functions of a water services provider itself or enter into a written contract with a water services provider to provide water services. (2) Before entering into a contract with a water services provider, the water services authority must— (a) publicly disclose its intention to do so; and (b) follow such procurement procedures as may be required by the Constitution or by any other law. (3) The Minister may, after consultation with the Minister for Provincial Affairs and Constitutional Development prescribe— (a) matters which must be regulated by a contract between a water services provider and a water services authority; and (b) compulsory provisions to be included in such a contract, to ensure— (i) that water services are provided on an efficient, equitable and sustainable basis; (ii) that the terms of the contract are fair and equitable to the water services authority, the water services provider and the consumer; and (iii) compliance with this Act. (4) As soon as such a contract has been concluded, the water services authority must supply a copy thereof to the relevant Province and to the Minister. (5) The Minister may provide model contracts to be used as a guide for contracts between water services authorities and water services providers. Water services authority acting as water services provider 21. (1) When performing the functions of a water services provider, a water services authority must manage and account separately for those functions. (2) A water services authority may act as a water services provider outside its area of jurisdiction, if contracted to do so by the water services authority for the area in question. Bylaws 22. (1) Every water services authority must make bylaws containing conditions for the provision of water services, which must provide for at least— (a) the standard of the services; (b) the technical conditions of supply, including units or standards of measurement, verification of meters, limits of error and settlement of disputes relating to the measurement of water services provided; (c) the installation, alteration, operation, protection and inspection of water services works and consumer installations; (d) the determination and structure of tariffs; (e) the payment and collection of money due for the water services; (f) the circumstances under which water services may be limited or discontinued and the procedure for such limitation or discontinuation; and (g) the prevention of unlawful or wasteful use of water. (2) Conditions under which water services are provided— (a) may place limits on the areas to which water services will be provided according to the nature, topography, zoning and situation of the land in question; (b) may provide for the limitation or discontinuation of water services where a consumer fails to meet his or her obligations to the water services provider, including— (i) a failure to pay for services; or (ii) a failure to meet other conditions for the provision of services; (c) may place an obligation on a payment defaulter— (i) to pay a higher deposit; (ii) to pay a reconnection fee after disconnection; and (iii) to pay interest on outstanding amounts; (d) may include an option to retain limited access to at least basic water supply and basic sanitation for a consumer whose water services are to be discontinued; and (e) must be accessible to consumers and potential consumers. (3) The Minister may provide model bylaws to be used as a guide for water services authorities. CHAPTER IV Water services providers Approval to operate as water services provider 23. (1) No person may operate as a water services provider without the approval of the water services authority having jurisdiction in the area in question. (2) Any approval under subsection (1)— (a) must be for a limited time period, which may be subject to renewal; and (b) may be subject to conditions. (3) Any person who, at the commencement of this Act, was acting as a water services provider without approval from the water services authority having jurisdiction in the area in question, may continue to do so until the expiry of reasonable notice given by that water services authority— (i) that it requires the provider to enter into a contract or; (ii) that the continuation will be subject to approval as contemplated in subsection (1). Water services provider must give information 24. A water services provider must give such information concerning the provision of water services as may reasonably be called for by— (a) the water services authority having jurisdiction in the area in question; (b) the relevant Province; (c) the Minister; or (d) a consumer or potential consumer. CHAPTER V Water services intermediaries Registration of water services intermediaries 25. A water services authority may, in its bylaws, require the registration of water services intermediaries or classes of such intermediaries within its area of jurisdiction. Duties of water services intermediaries 26. (1) The quality, quantity and sustainability of water services provided by a water services intermediary must meet any minimum standards prescribed by the Minister and any minimum standards prescribed by the relevant water services authority. (2) A water services intermediary may not charge for water services at a tariff which does not comply with any norms and standards determined under this Act. Default by water services intermediaries 27. (1) If a water services intermediary fails to perform its functions effectively, the water services authority having jurisdiction in the area in question may direct the water services intermediary to rectify its failure. (2) A direction in terms of subsection (1) must set out— (a) the nature of the failure; (b) the steps which must be taken to rectify the failure; and (c) the period within which those steps must be taken. (3) If the water services intermediary fails to rectify its failure within that period, the water services authority may— (a) after having given the water services intermediary a reasonable opportunity to make written submissions to it; and (b) after having afforded the water service intermediary a hearing on any submissions received, take over the relevant functions of the water services intermediary. (4) Where a wate