Zimbabwe National Water Authority Bill (ZINWA)

MemorandumThis Bill establishes the Zimbabwe National Water Authority, a statutory corporation which will be charged with the operational aspects of what has hitherto constituted part of the work of the Department of Water Development. With the proposed establishment of the Zimbabwe National Water Authority, the development and management of the national water resources will be the responsibility of the Authority whilst the policy making and regulatory functions will remain the responsibility of the Government in the Department of Water Development. The Authority will operate on a commercial basis except in respect of certain non-commercial functions for which levies will be raised from certain water consumers. In more detail, the Bill provides as follows:Part I of the Bill deals with preliminary matters, i.e. the title of the Bill, date of commencement and the interpretation of terms.In Part II of the Bill, clause 3 deals with the establishment of the Authority which will be a body corporate with the usual features of such corporations. Clause 4 provides for a Board of the Authority for the control and direction of the operations of the Authority. The Board will consist of 10 members of whom 7 will be appointed by the Minister, one will be the managing director, and two will be appointed by the Minister from a list of persons nominated by catchment councils which will be set up to manage water resources in specified river systems established under the Water Act. Six of the Minister’s direct appointments will be persons recognized for their ability and experience in the development and management of water resources, business and administration. One member will be a water engineer from the Ministry responsible for water resources development.Clause 5 sets out a detailed list of functions of the Authority. Essentially, the Authority will advise the Minister in the formulation of national policies and standards on water resources planning, management and development; on water quality and pollution control and the protection of the environment; on hydrological and hydrogeological matters; on dam safety and borehole drilling; and on water pricing. The functions emphasize the Authority’s role in ensuring the equitable accessibility to water by citizens and its efficient allocation, distribution, use and development on a cost effective basis. The Authority will superintend catchment councils established under the Water Act in discharging their functions under that Act and will assist local authorities in the development and management of, in particular, potable water resources in areas under their jurisdiction.Clause 6 provides for the powers of the Authority which powers are set out in the Schedule. In the performance of its functions, the Authority will have regard to the environmental, social, physical and economic impact of any of its activities. Clauses 7 to 20 are standard provisions dealing with matters of qualifications and conditions of membership of members of the Board, committees of the Board, the holding of meetings and the appointment of the managing director, etc.Part III of the Bill makes provision in clauses 21 to 32 for the management of the financial affairs of the Authority. Under clause 21 the funds of the Authority will include Parliamentary appropriations and fees and charges from services rendered by the Authority under clause 24 for such services as the sale of raw or treated water from water works it operates or controls; the disposal of waste water; the drilling of boreholes and the provision of consultancy services. Any charges fixed in terms of clause 24 must get the approval of the Minister. Clause 24 also sets out the basis upon which any increase in charges may be done. Different levels of charges may be fixed in respect of different classes of persons as long as the differentiation is not on the basis of the discrimination prohibited by the Constitution. The rest of the provisions in this Part are standard.Part IV of the Bill provides in clauses 33 to 39 for a Water Levy Fund. Clause 33 establishes the Water Levy Fund which will be vested in the Minister as trustee. The Fund will be for the development of water resources. Under clause 34, the Fund will consist of water levies payable under clause 35 by permit holders whose permits are issued under the Water Act, Parliamentary appropriations and any other moneys to which the Fund may become entitled. The Fund will be administered by the Authority on behalf of and in accordance with the directions of the Minister (clause 36). The moneys in the Fund will be applied to such functions, other than the commercial activities of the Authority, as the Minister may approve aimed at promoting the development of water resources. Clauses 38 and 39 of the Bill are standard provisions dealing with the management of the Fund. Part V deals with general matters pertaining to the affairs of the Authority. Clause 40 authorises the Minister to get the affairs of the Authority investigated if he considers it necessary and clause 41 requires the Authority to provide the Minister with its financial reports, a report of the Authority’s activities and the auditor’s report. Clause 43 provides for appeals against decisions of the managing director and the Board to the Minister and the Administrative Court. Clause 44 provides for the Minister’s powers, in consultation with the board, to make regulations and clause 45 repeals the Regional Water Authority Act [Chapter 20:16].Part VI of the Bill contains transitional provisions dealing with the transfer of some members of the Public Service to the Authority following the transfer of some of the functions of the Department of Water Development to the Authority. Clause 46 deals with such transfer whilst clause 47 provides for the conditions as to remuneration, pension, leave, security of tenure, etc., upon which the transfer will be made. The Minister of Finance may authorize the transfer to the Authority of some assets of the Department of Water Development, together with any liabilities and obligations attaching to them (clause 48).Following upon the repeal of the Regional Water Authority Act [Chapter 20:16], the Bill makes provision for the transfer of the assets of the Regional Water Authority to the new Authority (clause 49). Clause 50 vests in the new Authority all the contractual obligations of the Regional Water Authority. Under clause 51, the Minister is authorized to give directions to ensure the proper transfer of assets by the Regional Water Authority to the new Authority. Clause 52 is a standard savings provision and the Schedule sets out the powers of the Authority. PSM/ZINWABIL1st October, 1997.ZIMBABWE NATIONAL WATER AUTHORITY BILL, 1997ARRANGEMENT OF SECTIONS PART IPRELIMINARYSection1. Short title and date of commencement.2. Interpretation.PART IIZIMBABWE NATIONAL WATER AUTHORITY3. Establishment of Zimbabwe National Water Authority.4. Board of Authority.5. Functions of Authority.6. Powers of Authority.7. Qualification for appointment as member.8. Terms and conditions of office of members.9. Vacation of office by members.10. Filling of vacancies on Board.11. Meetings and procedure of Board.12. Committees of Board.13. Remuneration and allowances of members of Board and committees.14. Disclosure of interests by members of Board and committees.15. Minutes of proceedings of Board and committees.16. Appointment and functions of managing director of Authority.17. Validity of decisions and acts of Board and committees.18. Execution of contracts and instruments by Authority.19. Reports of Authority.20. Minister may give Board directions on matters of policy.PART IIIFINANCIAL PROVISIONS RELATING TO AUTHORITY21. Annual programmes and budgets of Authority.22 Funds of Authority23. Payments to Authority by subsidiaries.24. Water and other charges.25. Investment of moneys not immediately required by Authority.26. Authority to make certain charges to revenue account.27. Establishment and operation of general reserve.28. Meeting of deficiencies.29. Accounts of Authority.30. Audit of Authority’s accounts.31. Powers of auditors.32. Financial year of Authority.PART IVWATER LEVY FUND33. Establishment and object of Water Levy Fund.34. Composition of Fund.35. Water levy.36. Administration of Fund.37. Application of Fund.38. Financial year of Fund.39. Books of Account and audit of Fund.PART VGENERAL40. Investigation into affairs of Authority.41. Information to be furnished to Minister and to Parliament.42. Minister may require statistics and information.43. Appeals.44. Regulations.45. Repeal of Cap. 20:16.PART VITRANSITIONAL PROVISIONS AND SAVINGS46. Transfer of State employees to Authority.47. Conditions of employment of transferred employees.48. Transfer of certain assets, rights, liabilities and obligations to Authority.49. Transfer of assets and liabilities of Regional Water Authority.50. Obligations of Zimbabwe National Water Authority.51. Directions regarding transitional matters.52. Savings.SCHEDULE : Powers of Authority.Seventh draft : 1st October, 1997.Sixth draft : 23rd23dr May, 1997.Fifth draft : 3rd April, 1997.Fourth draft : 27th March, 1997.Third draft : 26th February, 1997.Second draft : 17th December, 1996.First draft : 25th October, 1996.B I L LTo establish the Zimbabwe National Water Authority and to provide for its functions; to provide for the appointment and functions of a board of the Authority; to provide for the raising of charges for the provision of water and other services by the Authority; to provide for the funds of the Authority; to provide for the imposition and collection of a water levy; to repeal the Regional Water Authority Act [Chapter 20:16]; and to provide for matters connected with or incidental to the foregoing.ENACTED by the President and the Parliament of Zimbabwe.PART IPRELIMINARY1 Short title and date of commencement(1) This Act may be cited as the Zimbabwe National Water Authority Act, 1997.(2) This Act shall come into operation on a date to be fixed by the President by statutory instrument.2 Interpretation2. In this Act—”appropriate Minister”, in relation to any matter, means the Minister who by or under any enactment is empowered or required to exercise any power or to perform any duty or function in respect of the matter or to whom any function in respect of the matter has been assigned;”Authority” means the Zimbabwe National Water Authority established by section three;”Board” means the Board of the Authority constituted in terms of section four;”catchment council” has the meaning assigned to it in the Water Act, 1997;”financial year” means the financial year fixed in terms of section thirty-two;”fixed date” means the date fixed in terms of subsection (2) of section one as the date of commencement of this Act;”member” means a member of the Board, including the chairman;”Minister” means the Minister of Rural Resources and Water Development or any other Minister to whom the President may, from time to time, assign the administration of this Act;”Regional Water Authority” means the Regional Water Authority which was established under section 3 of the repealed Act;”repealed Act” means the Regional Water Authority Act [Chapter 20:16], repealed by this Act;”water works” has the meaning assigned to it in the Water Act, 1997.3 Establishment of Zimbabwe National Water AuthorityThere is hereby established an authority, to be known as the Zimbabwe National Water Authority, which shall be a body corporate capable of suing and being sued in its own name and, subject to this Act, of performing all acts that bodies corporate may by law perform.4 Board of Authority(1) Subject to this Act, the operations of the Authority shall be directed and controlled by a board consisting of—(a) a chairman appointed by the Minister; and(b) the managing director; and(c) eight other members of whom—(i) six shall be appointed by the Minister; and(ii) two shall be appointed by the Minister from a list of not less than five persons nominated by catchment councils established in terms of the Water Act, 1997.(2) Of the persons appointed in terms of subparagraph (i) of paragraph (c) of subsection (1)—(a) one shall be a member of the Public Service who is a water engineer appointed from among the water engineers employed by the Ministry for which the Minister is responsible; and(b) the remainder, as well as the chairman, shall be persons recognised for their ability and experience in the development and management of water resources, business or administration.(3) Members of the board shall elect one of their number to be deputy chairman of the Board.5 Functions of Authority(1) Subject to this Act, the Water Act, 1997, and any other enactment, the functions of the Authority shall be—(a) to advise the Minister on the formulation of national policies and standards on—(i) water resources planning, management and development; and(ii) water quality and pollution control and environmental protection; and(iii) hydrology and hydrogeology; and(iv) dam safety and borehole drilling; and(v) water pricing;and(b) subject to the Water Act, 1997, to assist and participate in or advise on any matter pertaining to the planning of the development, exploitation, protection and conservation of water resources; and(c) to exploit, conserve and manage the water resources of Zimbabwe with the object of—(i) securing equitable accessibility and efficient allocation, distribution, use and development; and(ii) providing, in both the short and the long term, adequate water on a cost effective basis; and(iii) taking appropriate measures to minimise the impacts of droughts, floods or other hazards;and(d) to promote an equitable, efficient and sustainable allocation and distribution of water resources; and(e) to encourage and assist local authorities in the discharge of their functions under the Rural District Councils Act [Chapter 29:13] and the Urban Councils Act [Chapter 29:15] with regard to the development and management of water resources in areas under their jurisdiction and in particular, the provision of potable water and the disposal of waste water; and(f) to superintend, catchment councils in the discharge of their functions under the Water Act, 1997; and(g) to encourage and assist catchment councils to plan and co-ordinate the development and management of water resources in areas under their jurisdiction; and(h) to operate and maintain any water works owned or managed by the Authority and to sell any water therefrom, to dispose of waste water, to construct boreholes and to provide design and construction services; and(i) to provide, at such fee as the Authority, may determine, all forms of assistance, including technical assistance, personnel, advisory and training, information and other services to the Government, local authorities and catchment councils in connection with the exploitation, development, management and distribution of water resources; and(j) to undertake research studies and develop a database on hydrological issues pertaining to or of interest to Zimbabwe and to publish the findings and any other data compiled by the Authority; and(k) to conduct hydrological and geographical surveys and to produce plans, maps or other information necessary in the planning, development and exploitation of water resources and to publish any such surveys, plans, maps or other information; and(l) to promote such mechanisms for the co-operative management of international water resources as the Minister may determine; and(m) to carry out any function that may be conferred or imposed on the Authority by or under this Act, the Water Act, 1997 or any other enactment.(2) If, in the carrying out of the Authority’s functions under this Act, any question arises as to what is to be considered to be the national interest, the question shall be decided by the President after consultation with the Minister and the Authority.6 Powers of Authority(1) For the better exercise of its functions, the Authority shall have the power, subject to this Act, to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Schedule either absolutely or conditionally and either solely or jointly with others.(2) In the performance of the Authority’s functions, the Board shall have regard to the environmental, social, physical and economic impact of any activity or undertaking.7 Qualifications for appointment as memberSubject to this Act, a person shall not be qualified for appointment or election as a member if—(a) he not is a citizen of Zimbabwe or ordinarily resident in Zimbabwe; or(b) he has, in terms of a law in force in any country—(i) been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated therefrom; or(ii) made an assignment or composition with his creditors which has not been rescinded or set aside;or(c) he has been convicted in Zimbabwe or in any other country of any offence involving dishonesty or any other offence for which a term of imprisonment without the option of a fine, whether or not any portion of that sentence has been suspended has been imposed;(d) he is a member of Parliament.8 Terms and conditions of office of members(1) Subject to this Act, a member shall hold office for a period of three years from the date of his appointment, and shall cease to hold office only in terms of this Act.(2) A retiring member shall be eligible for re-appointment.9 Vacation of office by members(1) A member shall vacate his office and his office shall become vacant from the date on which -(a) the period for which he has been appointed expires; or(b) he gives notice to the Board of his intention to resign or after such period, not exceeding two months, from that date as he and the Board may agree upon; or(c) he is elected as a member of Parliament; or(d) he ceases to be a citizen of Zimbabwe or to be ordinarily resident in Zimbabwe; or(e) he is convicted of any offence involving dishonesty or begins to serve a sentence of imprisonment imposed on him, whether in Zimbabwe or elsewhere; or(f) he is adjudged, by a court of competent jurisdiction, to be mentally or physically incapable of performing his functions as a member; or(g) in the case of the managing director, when he ceases to be the managing director.(2) The Minister, on the recommendation of the Board, may require a member to vacate his office if the Minister is satisfied that the member has been absent without the permission of the Board from three consecutive meetings of the Board, of which the member was given not less than seven days’ notice, and that there was no just cause for the member’s absence.(3) A member’s membership of the Board shall be suspended, and he shall not exercise any functions of the Board or be entitled to receive any remuneration as a member of the Board, from the date on which he first appears in court, on remand or for trial, in any criminal proceedings in Zimbabwe or elsewhere in respect of any offence involving dishonesty or any offence for which a sentence of imprisonment without the option of a fine may be imposed.10 Filling of vacancies on BoardOn the death of, or the vacation of office in terms of section nine, by a member, his office shall be filled within three months in accordance with section four.11 Meetings and procedure of Board(1) The Board shall hold its first meeting on a date and place fixed by the Minister, and thereafter shall meet for the dispatch of business and adjourn, close and otherwise regulate its meetings and procedure as it thinks fit:Provided that the Board shall meet at least six times in each financial year.(2) The chairman of the Board—(a) may convene a special meeting of the Board at any time; and(b) shall convene a special meeting of the Board on the written request of the Minister or not fewer than two members, which meeting shall be convened for a date not sooner than seven days and not later than thirty days after the chairman’s receipt of the request.(3) Written notice of a special meeting convened in terms of subsection (2) shall be sent to each member not later than forty-eight hours before the meeting and shall specify the business for which the meeting has been convened.(4) No business shall be discussed at a special meeting convened in terms of subsection (2) other than—(a) such business as may be determined by the chairman of the Board, where he convened the meeting in terms of paragraph (a) of subsection (2); or(b) the business specified in the request for the meeting, where the chairman of the Board convened the meeting in terms of paragraph (b) of subsection (2).(5) The chairman of the Board or, in his absence, the deputy chairman shall preside at all meetings of the Board:Provided that, if the chairman and deputy chairman are both absent from any meeting of the Board, the members present may elect one of their number to preside at that meeting as chairman.(6) Five members shall form a quorum at any meeting of the Board.(7) Subject to subsection (12), anything authorized or required to be done by the Board may be decided by a majority vote at any meeting of the Board at which a quorum is present.(8) With the Board’s approval, the chairman of the Board may invite any person to attend a meeting of the Board or a committee, where the chairman considers that the person has special knowledge or experience in any matter to be considered by the Board or the committee, as the case may be, at that meeting.(9) A person invited to attend a meeting of the Board or of a committee in terms of subsection (8) may take part in the proceedings of the Board or the committee as if he were a member thereof, but shall not have a vote on any question before the Board or committee, as the case may be.(10) Subject to subsection (11) and to section fifteen, at all meetings of the Board each member present shall have one vote on any question before the Board and, in the event of an equality of votes, the person presiding at the meeting shall have a casting vote in addition to a deliberative vote.(11) The managing director shall not take part in the discussion of, and shall not vote on, any question before the Board which involves—(a) his tenure of office or conditions of service; or(b) advice which the Board is to give the Minister in regard to an appeal under section forty-three against a decision of the managing director.(12) Any proposal circulated among all members and agreed to in writing by a majority of them shall have the same effect as a resolution passed by a duly constituted meeting of the Board and shall be incorporated into the minutes of the next succeeding meeting of the Board:Provided that, if a member requires that such a proposal be placed before a meeting of the Board, this subsection shall not apply to the proposal.12 Committees of Board(1) For the better exercise of its functions, the Board may establish one or more committees in which the Board may vest such of its functions as it considers appropriate:Provided that the vesting of any function in a committee shall not divest the Board of that function, and the Board may amend or rescind any decision of the committee in the exercise of that function.(2) On the establishment of a committee in terms of subsection (1), the Board -(a) shall appoint at least one member of the Board as a member of the committee, and that member or one of those members, as the case may be, shall be chairman of the committee; and(b) may appoint as members of the committee, on such terms and conditions as the Board may fix, persons who are not members of the Board.(3) Meetings of a committee may be convened at any time and at any place by the chairman of the Board or the chairman of the committee.(4) Subject to subsection (3) and to section fourteen and fifteen, the procedure to be followed at any meeting of a committee and the quorum at any such meeting shall be as fixed by the Board.13 Remuneration and allowances of members of Board and committees(1) Every member of the Board or of a committee shall be paid—(a) such remuneration, if any; and(b) such allowances to meet his reasonable expenses incurred in connection with the business of the Board or the committee, as the case may be;as the Board may fix with the approval of the Minister.14 Disclosure of interests by members of Board and committees(1) In this section -“associate”, in relation to a member, means—(a) a person who is related to the member by blood or by marriage; or(b) a partner, employee or employer of the member; or(c) any body of persons, whether corporate or unincorporated, of which the member is a director or in which the member holds any office or position other than that of an auditor or in which the member holds a controlling interest.(2) The managing director and every member shall, upon appointment, and annually thereafter, declare to the Board in full any significant commercial or financial interest held directly or indirectly by him or his associate in accordance with such guidelines as the Board, in consultation with the Minister, may fix.(3) If a member or his associate is in any way interested, whether directly or indirectly, in any business or proposed business of the Authority, the member shall disclose his interest at the meeting of the Board at which the business or proposed business is first taken into consideration.(4) If a member or his associate becomes interested, whether directly or indirectly, in any business or proposed business of the Authority after it has been taken into consideration by the Board, the member shall declare his interest to the Board at the first meeting of the Board which takes place after his interest arises.(5) A general declaration that a member or his associate has an interest in any particular company or body of persons and is interested in all transactions by that company or body of persons shall not be sufficient disclosure for the purposes of this section, and whenever any business or proposed business by the Authority with that company or body of persons is taken into consideration by the Board, a declaration of interest in terms of this section shall be required.(6) A member shall take no part in the consideration or discussion of, or vote on, any question before the Board which relates to any matter in which he or his associate has an interest.15 Minutes of proceedings of Board and committees(1) The Board shall cause minutes of all proceedings of and decisions taken at every meeting of the Board and of every committee to be entered in books kept for the purpose.(2) Any minutes referred to in subsection (1) which purport to be signed by the person presiding at the meeting to which the minute relate or by the person presiding at the next following meeting of the Board or the committee concerned, as the case may be, shall be accepted for all purposes as prima facie evidence of the proceedings and decisions taken at the meeting concerned.16 Validity of decisions and acts of Board and committeesNo decision or act of the Board or a committee or act that is authorized by the Board or a committee shall be invalid solely because there was a vacancy in the membership of the Board or the committee or because a disqualified person purported to act as a member of the Board or the committee, as the case may be, at the time the decision was taken or the act was done or authorized.17 Appointment and functions of managing director of Authority(1) Subject to this Act, the Board shall appoint, on such terms and conditions as the Board may fix, a person to be the managing director of the Authority.(2) Without the authority of the Minister, no person shall be appointed as managing director and no person shall be qualified to hold office as managing director if he is not a citizen of Zimbabwe or ordinarily resident in Zimbabwe.(3) The appointment of the managing director shall terminate if he would be required in terms of paragraph (c), (d) or (e) of subsection (1) of section ten to vacate his office had that section, and paragraph (a) of subsection (2) of section eight, applied to him:Provided that his appointment shall not terminate on the ground that he has ceased to be a citizen of Zimbabwe or ordinarily resident in Zimbabwe, if the Minister has granted authority under subsection (2).(4) The managing director shall, subject to the Board’s directions, supervise and manage the Authority’s staff, activities, funds and property and perform such other functions on behalf of the Board as the Board may assign to him.(5) Any assignment of functions in terms of subsection (4)—(a) may be made generally or specially and subject to such conditions, restrictions, reservations and exceptions as the Board may determine;(b) may be revoked by the Board at any time;(c) shall not preclude the Board itself from exercising the functions.18 Execution of contracts and instruments by Authority.An agreement, contract or instrument approved by the Board may be entered into or executed on the Authority’s behalf by any person generally or specially authorized by the Board for that purpose.19 Reports of Authority(1) In addition to any annual report which the Authority may be required to submit to the Minister in terms of the Audit and Exchequer Act [Chapter 22:03], the Board -(a) shall submit to the Minister such other reports as the Minister may require; and(b) may submit to the Minister such other reports as the Authority considers desirable;in regard to the operations, undertakings and activities of the Authority.(2) The Board shall give the Minister all information relating to the operations, undertakings and activities of the Authority that the Minister may at any time require.20 Minister may give Board directions on matters of policy(1) Subject to subsection (2), the Minister may give the Board such directions of a general character relating to the policy which the Authority is to observe in the exercise of its functions, as the Minister considers to be requisite in the national interest.(2) Before giving the Board a direction in terms of subsection (1), the Minister shall inform the Board, in writing, of the proposed direction and the Board shall, within thirty days or such further period as the Minister may allow, submit to the Minister, in writing, its views on the proposal and the possible effects which the proposal may have on the finances, commercial interests and other resources and functioning of the Authority.(3) After receipt of the views of the Board submitted in terms of subsection (2), the Minister may confirm, alter or withdraw any proposed direction to the Board and, where the Minister has confirmed a direction, whether altered or not, the Board shall forthwith comply with the direction.(4) When any direction has been received by the Board in terms of this section, the Board shall set out in the Authority’s annual report the direction received by it, the views expressed by it in terms of subsection (2), and the final direction given to it in terms of subsection (3).21 Annual programmes and budgets of Authority(1) On or before the beginning of every financial year, the Board shall prepare and submit to the Minister for his approval—(a) a programme of the projects and activities which the Board intends the Authority to undertake during that financial year; and(b) a budget showing the income and expenditure of the Authority which the Board proposes that the Authority will incur in respect of that for the financial year as proposed by the Board..(2) During any financial year the Board may submit to the Minister for his approval a supplementary budget relating to expenditure which -(a) was not, for good reason, provided for in the annual budget; or(b) was inadequately provided for in the annual budget due to unforeseenunforseen circumstances.(3) A supplementary budget approved by the Minister shall be deemed to form part of the annual budget of the Authority for the financial year to which it relates.(4) The Board shall furnish the Minister with such additional information in regard to any budget submitted under