Water

The water we have on earth is very old and it is the only water we are going to get. Our water is the same water that was used by the dinosaurs millions of years ago. Earth’s water evaporates, it condenses high up in the cool sky, and then falls (precipitates) as rain, snow, etc. So the cycle will start again.¹

Seventy percent of the earth’s surface is covered with water. Only 3% of that is fresh water, but less than 1% is actually available for life on earth. This water is distributed unevenly, though. South Africa receives an annual average rainfall of 492 millimetres, but the average rainfall for the earth is almost exactly double that. And, of course, there is uneven distribution of rainfall across the Republic – the Eastern section is much ‘wetter’ than the Western half.²

According to the Department of Water and Sanitation, the demand for water was going to outstrip supply in Gauteng by 2013, and in the whole of South Africa by 2025. South Africa cannot afford to build more dams and water transfer schemes as they cost large amounts of money. Thus, water in South Africa is in great demand; and, as the human population increases with its increasing needs for survival, the greater is the demand for water.

The National Water Act 1998 provides for the regulation and management of our scarce water resources. It falls under the authority of the Minister of Water and Sanitation, but most, if not all of the implementation falls on the shoulders of the Department of Water Affairs and its Director-General.

Unfortunately, the Act is rather generic when it comes to criminalising contraventions – apart from certain specified offences, it provides that it is an offence to ‘use water otherwise than as permitted’ under the Act.³ What follows embodies an extrapolation of the various applicable provisions.

A. Pollution

1. It is an offence to commit any act, or omission which pollutes, or is likely to pollute a water resource.^4 5

2. It is a crime to commit any act, or omission, which detrimentally affects (or is likely to affect) a water resource.⁶

3. A catchment management agency may direct any land owner, user or occupier to take specific measures in order to prevent pollution of a water resource affected by activities on the land. It is a crime to fail to comply with this directive.⁷

4. In the event of an incident which does (or is likely to) pollute, or have a detrimental effect on a water resource the person responsible⁸ must report it to the Department, or to the SAPS, or the Fire Department, or to the relevant catchment management agency. He must also undertake containment and remedial measures, and clean up procedures. The Agency can also direct him to take certain measures, and it is a criminal offence to fail to comply with such a directive.⁹

B. Director-General and inspectors

1. If you have been required to provide access to books, accounts, documents or assets, it is a criminal offence to fail to do so.¹⁰

2. If you have been required to give information for any purposes under the Act, it is an offence to fail or refuse to do so.¹¹

3. It is an offence to give information or data which is false or misleading.¹²

4. If you have a duty to perform under the Act, it is a crime to refuse to do so.¹³

5. It is an offence to obstruct any person in the performance of his duties or the exercise of any powers in terms of the Act.¹⁴

C. The ‘responsible authority’ and the Water Tribunal

1. The ‘responsible authority’ is either the Minister or a catchment management agency. They can issue notifications directing you to take certain action, in the event that you contravene the Act in any way. It is a crime not to comply with such a notification.¹⁵

2. The Tribunal hears appeals against certain decisions of responsible authorities, catchment management agencies, and water management institutions. It is a crime to commit contempt of the Tribunal – in other words, to disobey its rulings or orders, and to behave, write or speak contemptuously of the Tribunal whether during its sessions or elsewhere.¹⁶

D. Waterworks and dams

1. A ‘waterwork’ is any borehole, structure, earthwork or equipment installed or used for, or in connection with water use. It is a crime to tamper or interfere with any waterwork, or any seal or measuring device attached to a waterwork.¹⁷

2. Any dam which is a safety risk¹⁸ must be registered by the owner with the Department. Any owner who fails to do so is guilty of an offence.¹⁹

3. The Minister can also direct the owner to submit professional reports, and to undertake repairs or alterations to the dam. Any owner who fails to comply with such a directive is guilty of an offence.²⁰

E. Water restrictions

A catchment management agency can²¹ issue a notice limiting or prohibiting the use of water; prohibiting the use of any waterwork; requiring specific conservation measures; or, even, requiring any person to release stored water. It is a crime not to comply with the terms of any such notice.²²

F. Permitted water use

1. It is an offence to use water²³ otherwise than as permitted in terms of the Act.²⁴ Schedule 1 to the Act refers to ‘Permissible use of water’ and so it is to be assumed that use other than as so permitted is criminal conduct. This ‘permissible use’ is as follows:²⁵
   • to take water directly from any water resource to which a person has lawful access, for reasonable domestic use in that person’s household;
   • to take water from any water resource which is situated on, or forms a boundary of land, for use on land owned or occupied by the person, for use on his land, for:
     • reasonable domestic use;
     • small gardening, not for commercial purposes; and
     • the watering of animals (excluding feedlots) which graze on that land within the grazing capacity of that land,
     • provided that the use is not excessive in relation to the capacity of the water resource and the needs of other users;
   • to store and use run-off water from a roof;
   • in emergency situations, to take water from any water resource for human consumption or firefighting;
   • for recreational purposes:
     • to use the water or the water surface of a water resource to which that person has lawful access; or
     • to portage any boat or canoe on any land adjacent to a watercourse in order to continue boating on that watercourse; and
     • to discharge waste (or water containing waste) or run-off water (including stormwater from any residential, recreational, commercial or industrial site) into a canal, sea outfall or other conduit controlled by another person authorised to undertake the purification, treatment or disposal of waste or water containing waste, subject to the approval of the person controlling the canal, sea outfall or other conduit.

2. If you fail to comply with any condition attached to a permitted water use it is a criminal offence.²⁶

3. Previous legislation (repealed by the Act) permitted certain (other) water use. Continuation of that use is permitted by the Act, but the responsible authority may require it to be registered. If so, it is an offence to contravene such a requirement.²⁷

4. If the water use is not this ‘permitted use’, then you must be licensed.²⁸ It is an offence to contravene this provision.²⁹

5. In any event, there are further requirements. You must not waste water; you must return any seepage or run-off to the source from which it was taken; and if water that you dispose of contains waste, you must comply with applicable standards or management practices. It is an offence not to do all of this.³⁰

G. Employer’s liability

1. Whenever something done by an employee or agent:
   • constitutes an offence in terms of the Act, and takes place with the express or implied permission of the employer or principal, he is also liable to conviction for the offence; or
   • would constitute an offence by the employer or principal, that employee or agent will also be liable to conviction for that offence.³¹