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As 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.
This 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.
For the purposes of this Act, water use includes -
21.(a): taking water from a water resource;
21.(b): storing water;
21.(c): impeding or diverting the flow of water in a watercourse;
21.(d): engaging in a stream flow reduction activity contemplated in section 36;
21.(e): engaging in a controlled activity identified as such in section 37(1) or declared under section 38(1);
21.(f): discharging waste or water containing waste into a water resource through a pipe,
canal, sewer, sea outfall or other conduit;
21.(g): disposing of waste in a manner which may detrimentally impact on a water resource;
21.(h): disposing in any manner of water which contains waste from, or which has been
heated in, any industrial or power generation process;
21.(i): altering the bed, banks, course or characteristics of a watercourse;
21.(j): removing, discharging or disposing of water found underground if it is necessary
for the efficient continuation of an activity or for the safety of people; and
21.(k): using water for recreational purposes.
22.(1): A person may only use water -
22.(1)(a): without a licence -
22.(1)(a)(i): if that water use is permissible under Schedule 1;
22.(1)(a)(ii): if that water use is permissible as a continuation of an existing lawful
use; or
22.(1)(a)(iii): if that water use is permissible in terms of a general authorisation
issued under section 39;
22.(1)(b): if the water use is authorised by a licence under this Act; or
22.(1)(c): if the responsible authority has dispensed with a licence requirement under subsection (3).
22.(2): A person who uses water as contemplated in subsection (1) -
22.(2)(a): must use the water subject to any condition of the relevant authorisation for
that use;
22.(2)(b): is subject to any limitation, restriction or prohibition in terms of this Act
or any other applicable law;
22.(2)(c): in the case of the discharge or disposal of waste or water containing waste
contemplated in section 21(f),
22.(2)(g): , (h) or (j), must comply with any applicable waste standards or management
practices prescribed under section 26(1)(h) and
(i), unless the conditions of the relevant authorisation provide otherwise;
22.(2)(d): may not waste that water; and
22.(2)(e): must return any seepage, run-off or water containing waste which emanates from
that use, to the water resource from which the water was taken, unless the responsible
authority directs otherwise or the relevant authorisation provides otherwise.
22.(3): A responsible authority may dispense with the requirement for a licence for water
use if it is satisfied that the purpose of this Act will be met by the grant of a licence,
permit or other authorisation under any other law.
22.(4): In the interests of co-operative governance, a responsible authority may promote
arrangements with other organs of state to combine their respective licence requirements
into a single licence requirement.
22.(5): A responsible authority may, subject to section
17, authorise the use of water before -
22.(5)(a): a national water resource strategy has been established;
22.(5)(b): a catchment management strategy in respect of the water resource in question
has been established;
22.(5)(c): a classification system for water resources has been established;
22.(5)(d): the class and resource quality objectives for the water resource in question
have been determined; or
22.(5)(e): the Reserve for the water resource in question has been finally determined.
22.(6): Any person who has applied for a licence in terms of section 43 in respect of an existing lawful water use as
contemplated in section 32 , and whose application
has been refused or who has been granted a licence for a lesser use than the existing
lawful water use, resulting in severe prejudice to the economic viability of an
undertaking in respect of which the water was beneficially used, may, subject to
subsections (7) and (8), claim compensation for any financial loss suffered in
consequence.
22.(7): The amount of any compensation payable must be determined -
22.(7)(a):
in accordance with section 25(3) of the Constitution; and
22.(7)(b): by disregarding any reduction in the existing lawful water use made in order to
-
22.(7)(b)(i): provide for the Reserve;
22.(7)(b)(ii): rectify an over-allocation of water use from the resource in question; or
22.(7)(b)(iii): rectify an unfair or disproportionate water use.
22.(8): A claim for compensation must be lodged with the Water Tribunal within six months
of the relevant decision of the responsible authority.
22.(9): The Water Tribunal has jurisdiction to determine liability for compensation and
the amount of compensation payable in terms of this section.
22.(10): After the Water Tribunal has decided that compensation is payable and determined
the amount of compensation, the responsible authority may enter into negotiations with the
claimant and, within 30 days after the decision of the Water Tribunal, offer an allocation
of water instead of compensation.
23.(1): Subject to the national water resource strategy the Minister may determine the
quantity of water in respect of which a responsible authority may issue a general
authorisation and a licence from water resources in its water management area.
23.(2): Until a national water resource strategy has been established, the Minister may
make a preliminary determination of the quantity of water in respect of which a
responsible authority may issue a general authorisation and licence.
23.(3): A preliminary determination must be replaced by a determination under subsection
(1) once the national water resource strategy has been established.
23.(4): A responsible authority must comply with any determination made under subsection
(1) or (2).
23.(5): In making a determination under subsections (1) and (2) the Minister must take
account of the water available in the resource.
A 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.(1): A water management institution may, at the request of a person authorised to use
water for irrigation under this Act, allow that person on a temporary basis and on such
conditions as the water management institution may determine, to use some or all of that
water for a different purpose, or to allow the use of some or all of that water on another
property in the same vicinity for the same or a similar purpose.
25.(2): A person holding an entitlement to use water from a water resource in respect of
any land may surrender that entitlement or part of that entitlement -
25.(2)(a): in order to facilitate a particular licence application under section 41 for the use of water from the same resource
in respect of other land; and
25.(2)(b): on condition that the surrender only becomes effective if and when such
application is granted.
25.(3): The annual report of a water management institution or a responsible authority, as
the case may be, must, in addition to any other information required under this Act,
contain details in respect of every permission granted under subsection (1) or every
application granted under subsection (2).
26.(1): Subject to subsection (4), the Minister
may make regulations -
26.(1)(a): limiting or restricting the purpose, manner or extent of water use;
26.(1)(b): requiring that the use of water from a water resource be monitored, measured
and recorded;
26.(1)(c): requiring that any water use be registered with the responsible authority;
26.(1)(d): prescribing the outcome or effect which must be achieved by the installation
and operation of any waterwork;
26.(1)(e): regulating the design, construction, installation, operation and maintenance of
any waterwork, where it is necessary or desirable to monitor any water use or to protect a
water resource;
26.(1)(f): requiring qualifications for and registration of persons authorised to design,
construct, install, operate and maintain any waterwork, in order to protect the public and
to safeguard human life and property;
26.(1)(g): regulating or prohibiting any activity in order to protect a water resource or
instream or riparian habitat;
26.(1)(h): prescribing waste standards which specify the quantity, quality and temperature
of waste which may be discharged or deposited into or allowed to enter a water resource;
26.(1)(i): prescribing the outcome or effect which must be achieved through management
practices for the treatment of waste, or any class of waste, before it is discharged or
deposited into or allowed to enter a water resource;
26.(1)(j): requiring that waste discharged or deposited into or allowed to enter a water
resource be monitored and analysed, and prescribing methods for such monitoring and
analysis;
26.(1)(k): prescribing procedural requirements for licence applications;
26.(1)(l): relating to transactions in respect of authorisations to use water, including
but not limited to -
26.(1)(l)(i): the circumstances under which a transaction may be permitted;
26.(1)(l)(ii): the conditions subject to which a transaction may take place; and
26.(1)(l)(iii): the procedure to deal with a transaction;
26.(1)(m): prescribing methods for making a volumetric determination of water to be
ascribed to a stream flow reduction activity for purposes of water use allocation and the
imposition of charges;
26.(1)(n): prescribing procedures for the allocation of water by means of public tender or
auction; and
26.(1)(o): prescribing -
26.(1)(o)(i): procedures for obtaining; and
26.(1)(o)(ii): the required contents of, assessments of the likely effect which any
proposed licence may have on the quality of the water resource in question.
26.(2): Regulations made under subsection (1) may -
26.(2)(a): differentiate between different water resources and different classes of water
resources;
26.(2)(b): differentiate between different geographical areas; and
26.(2)(c): create offences and prescribe penalties.
26.(3): Regulations made under subsection (1)(h), (i)
and (j) may contain -
26.(3)(a): general provisions applicable to all waste; and
26.(3)(b): specific provisions applicable to waste with specific characteristics.
26.(4): When making regulations, the Minister must take into account all relevant
considerations, including the need to -
26.(4)(a): promote the economic and sustainable use of water;
26.(4)(b): conserve and protect water resources or, instream and riparian habitat;
26.(4)(c): prevent wasteful water use;
26.(4)(d): facilitate the management of water use and waterworks;
26.(4)(e): facilitate the monitoring of water use and water resources; and
26.(4)(f): facilitate the imposition and recovery of charges.
This 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 may be attached to them. The granting of a licence does not imply any guarantee regarding the availability or quality of water which it covers.
27.(1): In issuing a general authorisation or licence a responsible authority must take
into account all relevant factors, including -
27.(1)(a): existing lawful water uses;
27.(1)(b): the need to redress the results of past racial and gender discrimination;
27.(1)(c): efficient and beneficial use of water in the public interest;
27.(1)(d): the socio-economic impact -
27.(1)(d)(i): of the water use or uses if authorised; or
27.(1)(d)(ii): of the failure to authorise the water use or uses;
27.(1)(e): any catchment management strategy applicable to the relevant water resource;
27.(1)(f): the likely effect of the water use to be authorised on the water resource and
on other water users;
27.(1)(g): the class and the resource quality objectives of the water resource;
27.(1)(h): investments already made and to be made by the water user in respect of the
water use in question;
27.(1)(i): the strategic importance of the water use to be authorised;
27.(1)(j): the quality of water in the water resource which may be required for the
Reserve and for meeting international obligations; and
27.(1)(k): the probable duration of any undertaking for which a water use is to be
authorised.
27.(2): A responsible authority may not issue a licence to itself without the written
approval of the Minister.
28.(1): A licence contemplated in this Chapter must specify -
28.(1)(a): the water use or uses for which it is issued;
28.(1)(b): the property or area in respect of which it is issued;
28.(1)(c): the person to whom it is issued;
28.(1)(d): the conditions subject to which it is issued;
28.(1)(e): the licence period, which may not exceed forty years; and
28.(1)(f): the review periods during which the licence may be reviewed under section 49, which must be at intervals of not more than
five years.
28.(2): Subject to subsection (3), restriction, suspension or termination in terms of this
Act and review under section 49, a licence remains in
force until the end of the licence period, when it expires.
28.(3): Subject to subsection (4) and notwithstanding section
49(2), a responsible authority may extend the licence period of a licence if this is
done as part of a general review of licences carried out in terms of section 49.
28.(4): An extension of a licence period contemplated in subsection (3) may only be made
after the responsible authority has considered the factors specified in section 49(2) and all other relevant factors,
including new applications for water use and has concluded that there are no substantial
grounds not to grant an extension.
28.(5): An extension of a licence period in terms of subsection (3) may only be given for
a single review period at a time as stipulated in subsection
(1)(f).
28.(6): If the licence period of a licence is extended in terms of subsection (3), the licence may, in respect of the
period for which it is extended, be issued subject to different conditions which may
include a lesser permitted water use.
29.(1): A responsible authority may attach conditions to every general authorisation or
licence -
29.(1)(a): relating to the protection of -
29.(1)(a)(i): the water resource in question;
29.(1)(a)(ii): the stream flow regime; and
29.(1)(a)(iii): other existing and potential water users;
29.(1)(b): relating to water management by -
29.(1)(b)(i): specifying management practices and general requirements for any water use,
including water conservation measures;
29.(1)(b)(ii): requiring the monitoring and analysis of and reporting on every water use
and imposing a duty to measure and record aspects of water use, specifying measuring and
recording devices to be used;
29.(1)(b)(iii): requiring the preparation and approval of and adherence to, a water
management plan;
29.(1)(b)(iv): requiring the payment of charges for water use as provided for in Chapter 5;
29.(1)(b)(v): requiring the licensee to provide or make water available to a person
specified in the licence; and
29.(1)(b)(vi): in the case of a general authorisation, requiring the registration of the
water use with the responsible authority and the payment of a registration fee as a
pre-condition of that use;
29.(1)(c): relating to return flow and discharge or disposal of waste, by -
29.(1)(c)(i): specifying a water resource to which it must be returned or other manner in
which it must be disposed of;
29.(1)(c)(ii): specifying permissible levels for some or all of its chemical and physical
components;
29.(1)(c)(iii): specifying treatment to which it must be subjected, before it is
discharged; and
29.(1)(c)(iv): specifying the volume which may be returned;
29.(1)(d): in the case of a controlled activity -
29.(1)(d)(i): specifying the waste treatment, pollution control and monitoring equipment
to be installed, maintained and operated; and
29.(1)(d)(ii): specifying the management practices to be followed to prevent the pollution
of any water resource;
29.(1)(e): in the case of taking or storage of water -
29.(1)(e)(i): setting out the specific quantity of water or percentage of flow which may
be taken;
29.(1)(e)(ii): setting out the rate of abstraction;
29.(1)(e)(iii): specifying the method of construction of a borehole and the method of
abstraction from the borehole;
29.(1)(e)(iv): specifying the place from where water may be taken;
29.(1)(e)(v): specifying the times when water may be taken;
29.(1)(e)(vi): identifying or limiting the area of land on which any water taken from a
resource may be used;
29.(1)(e)(vii): limiting the quantity of water which may be stored;
29.(1)(e)(viii): specifying locations where water may be stored; and
29.(1)(e)(ix): requiring the licensee to become a member of a water user association
before water may be taken;
29.(1)(f): in the case of a stream flow reduction activity -
29.(1)(f)(i): specifying practices to be followed to limit stream flow reduction and other
detrimental impacts on the water resource; and
29.(1)(f)(ii): setting or prescribing a method for determining the extent of the stream
flow reduction caused by the authorised activity;
29.(1)(g): which are necessary or desirable to achieve the purpose for which the licence
was issued;
29.(1)(h): which are necessary or desirable to ensure compliance with the provisions of
this Act; and
29.(1)(i): in the case of a licence -
29.(1)(i)(i): specifying times when water may or may not be used;
29.(1)(i)(ii): containing provisions for its termination if an authorised use of water is
not implemented or not fully implemented;
29.(1)(i)(iii): designating water for future or contingent use; or
29.(1)(i)(iv): which have been agreed to by the licensee.
29.(2): If a licensee has agreed to pay compensation to another person in terms of any
arrangement to use water, the responsible authority may make the obligation to pay
compensation a condition of the licence.
30.(1): A responsible authority may, if it is necessary for the protection of the water
resource or property, require the applicant to give security in respect of any obligation
or potential obligation arising from a licence to be issued under this Act.
30.(2): The security referred to in subsection (1) may include any of the following:
30.(2)(i): A letter of credit from a bank;
30.(2)(ii): a surety or a bank guarantee;
30.(2)(iii): a bond;
30.(2)(iv): an insurance policy; or
30.(2)(v): any other appropriate form of security.
30.(3): The responsible authority must determine the type, extent and duration of any
security required.
30.(4): The duration of the security may extend beyond the time period specified in the
licence in question.
30.(5): If the responsible authority requires security in the form of an insurance policy,
it may require that it be jointly insured under or be a beneficiary of the insurance
policy and where appropriate, the responsible authority must be regarded as having an
insurable interest in the subject matter of the insurance policy.
30.(6): A person may apply in writing to the responsible authority to have any security
given by that person in terms of this section amended or discharged at any time, which
application may not be unreasonably refused.
The issue of a licence to use water does not imply a guarantee relating to -
31.(a): the statistical probability of supply;
31.(b): the availability of water; or
31.(c): the quality of water.
This 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.(1): An existing lawful water use means a water use -
32.(1)(a): which has taken place at any time during a period of two years immediately
before the date of commencement of this Act; or
32.(1)(b): which has been declared an existing lawful water use under section 33, and which -
32.(1)(b)(i): was authorised by or under any law which was in force immediately before the
date of commencement of this Act;
32.(1)(b)(ii): is identified as a stream flow reduction activity in section 36(1); or
32.(1)(b)(iii): is identified as a controlled activity in section 37(1).
32.(2): In the case of -
32.(2)(a): a stream flow reduction activity declared under section 36(1); or
32.(2)(b): a controlled activity declared under section
38, existing lawful water use means a water use which has taken place at any time
during a period of two years immediately before the date of the declaration.
33.(1): A person may apply to a responsible authority to have a water use which is not one
contemplated in section 32(1)(b)(i), (ii) or
(iii), declared to be an existing lawful water use.
33.(2): A responsible authority may, on its own initiative, declare a water use which is
not one contemplated in section 32(1)(b)(i), (ii)
or (iii), to be an existing lawful water use.
33.(3): A responsible authority may only make a declaration under subsections (1) and (2)
if it is satisfied that the water use -
33.(3)(a): took place more than two years before the date of commencement of this Act and
was discontinued for good reason; or
33.(3)(b): had not yet taken place at any time before the date of commencement of this Act
but -
33.(3)(b)(i): would have been lawful had it so taken place; and
33.(3)(b)(ii): steps towards effecting the use had been taken in good faith before the
date of commencement of this Act.
33.(4): Section 41 applies to an application in terms
of this section as if the application had been made in terms of that section.
34.(1): A person, or that person's successor-in-title, may continue with an existing
lawful water use, subject to -
34.(1)(a): any existing conditions or obligations attaching to that use;
34.(1)(b): its replacement by a licence in terms of this Act; or
34.(1)(c): any other limitation or prohibition by or under this Act.
34.(2): A responsible authority may, subject to any regulation made under section 26(1)(c), require the registration of an
existing lawful water use.
35.(1): The responsible authority may, in order to verify the lawfulness or extent of an
existing water use, by written notice require any person claiming an entitlement to that
water use to apply for a verification of that use.
35.(2): A notice under subsection (1) must -
35.(2)(a): have a suitable application form annexed to it;
35.(2)(b): specify a date before which the application must be submitted;
35.(2)(c): inform the person concerned that any entitlement to continue with the water use
may lapse if an application is not made on or before the specified date; and
35.(2)(d): be delivered personally or sent by registered mail to the person concerned.
35.(3): A responsible authority -
35.(3)(a): may require the applicant, at the applicant's expense, to obtain and provide it
with other information, in addition to the information contained in the application;
35.(3)(b): may conduct its own investigation into the veracity and the lawfulness of the
water use in question;
35.(3)(c): may invite written comments from any person who has an interest in the matter;
and
35.(3)(d): must afford the applicant an opportunity to make representations on any aspect
of the application.
35.(4): A responsible authority may determine the extent and lawfulness of a water use
pursuant to an application under this section, and such determination limits the extent of
any existing lawful water use contemplated in section
32(1).
35.(5): No person who has been required to apply for verification under subsection (1) in respect of an existing lawful water
use may exercise that water use -
35.(5)(a): after the closing date specified in the notice, if that person has not applied
for verification; or
35.(5)(b): after the verification application has been refused, if that person applied for
verification.
35.(6): A responsible authority may, for good reason, condone a late application and
charge a reasonable additional fee for processing the late application.
This 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.(1): The following are stream flow reduction activities:
36.(1)(a): the use of land for afforestation which has been or is being established for
commercial purposes; and
36.(1)(b): an activity which has been declared as such under subsection (2).
36.(2): The Minister may, by notice in the Gazette, in relation to a particular area
specified in that notice, declare any activity (including the cultivation of any
particular crop or other vegetation) to be a stream flow reduction activity if that
activity is likely to reduce the availability of water in a watercourse to the Reserve, to
meet international obligations, or to other water users significantly.
36.(3): In making a declaration under subsection (2), the Minister must consider -
36.(3)(a): the extent to which the activity significantly reduces the water availability
in the watercourse;
36.(3)(b): the effect of the stream flow reduction on the water resource in terms of its
class and the Reserve;
36.(3)(c): the probable duration of the activity;
36.(3)(d): any national water resource strategy established under section 5; and
36.(3)(e): any catchment management strategy established under section 8.
36.(4): Before making a declaration under subsection (2), the Minister must -
36.(4)(a): publish a notice in the Gazette -
36.(4)(a)(i): setting out the activity proposed to be declared a stream flow reduction
activity; and
36.(4)(a)(ii): inviting written comments to be submitted on the proposed declaration,
specifying an address to which and a date before which comments are to be submitted, which
date may not be earlier than 60 days after publication of the notice;
36.(4)(b): consider what further steps, if any, are appropriate to bring the contents of
the notice to the attention of interested persons, and take those steps which the Minister
considers to be appropriate; and
36.(4)(c): consider all comments received on or before the date specified in paragraph
(a)(ii).
36.(5): Every notice published in terms of subsection (4)(a) must contain a schedule in
which must be listed all stream flow reduction activities set out in subsection (1) and
those which have, up to the date of the notice, been declared to be stream flow reduction
activities under subsection (2).
This 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.(1): The following are controlled activities:
37.(1)(a): irrigation of any land with waste or water containing waste generated through
any industrial activity or by a waterwork;
37.(1)(b): an activity aimed at the modification of atmospheric precipitation;
37.(1)(c): a power generation activity which alters the flow regime of a water resource;
37.(1)(d): intentional recharging of an aquifer with any waste or water containing waste;
and
37.(1)(e): an activity which has been declared as such under section 38.
37.(2): No person may undertake a controlled activity unless such person is authorised to
do so by or under this Act.
38.(1): The Minister may, by notice in the Gazette, in general or specifically, declare an
activity to be a controlled activity.
38.(2): Before declaring an activity to be a controlled activity the Minister must be
satisfied that the activity in question is likely to impact detrimentally on a water
resource.
38.(3): Before making a declaration under subsection (1) the Minister -
38.(3)(a): must publish a notice in the Gazette -
38.(3)(a)(i): setting out the activity or category of activities proposed to be declared;
and
38.(3)(a)(ii): inviting written comments to be submitted on the proposed declaration,
specifying an address to which and a date before which comments are to be submitted, which
date may not be earlier than 60 days after publication of the notice; and
38.(3)(b): may, in the case of a specific activity on a specific site, make the notice
known by delivering or sending a copy to the owner or the person in control of the site in
question, and to every organ of state which, and every person who, has an interest in the
matter;
38.(3)(c): must consider what further steps, if any, are appropriate to bring the contents
of the notice to the attention of interested persons, and take those steps which the
Minister considers to be appropriate; and
38.(3)(d): must consider all comments received on or before the date specified in
paragraph(a)(ii).
38.(4): Every notice published in terms of subsection (1) must contain a schedule on which
must be listed all controlled activities set out in section
37(1)(a) to (d) and those which have, up to the date of the notice, been declared to
be controlled activities under subsection (1).
This 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.(1): A responsible authority may, subject to Schedule
1, by notice in the Gazette -
39.(1)(a): generally;
39.(1)(b): in relation to a specific water resource; or
39.(1)(c): within an area specified in the notice, authorise all or any category of
persons to use water, subject to any regulation made under section 26 and any conditions imposed under section 29.
39.(2): The notice must state the geographical area in respect of which the general
authorisation will apply, and the date upon which the general authorisation will come into
force, and may state the date on which the general authorisation will lapse.
39.(3): A water use may be authorised under subsection (1) on condition that the user
obtains any permission or authority required by any other specified law.
39.(4): Before issuing a general authorisation, the responsible authority must -
39.(4)(a): publish a notice in the Gazette -
39.(4)(a)(i): setting out the proposed general authorisation; and
39.(4)(a)(ii): inviting written comments to be submitted on the proposed general
authorisation, specifying an address to which and a date before which comments are to be
submitted, which date may not be earlier than 60 days after publication of the notice;
39.(4)(b): consider what further steps, if any, are appropriate to bring the contents of
the notice to the attention of interested persons, and take those steps which the
responsible authority considers to be appropriate; and
39.(4)(c): consider all comments received on or before the date specified in paragraph
(a)(ii).
39.(5): An authorisation to use water under this section does not replace or limit any
entitlement to use water which a person may otherwise have under this Act.
This 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.(1): A person who is required or wishes to obtain a licence to use water must apply to
the relevant responsible authority for a licence.
40.(2): Where a person has made an application for an authorisation to use water under
another Act, and that application has not been finalised when this Act takes effect, the
application must be regarded as being an application for a water use under this Act.
40.(3): A responsible authority may charge a reasonable fee for processing a licence
application, which may be waived in deserving cases.
40.(4): A responsible authority may decline to consider a licence application for the use
of water to which the applicant is already entitled by way of an existing lawful water use
or under a general authorisation.
41.(1): An application for a licence for water use must -
41.(1)(a): be made in the form;
41.(1)(b): contain the information; and
41.(1)(c): be accompanied by the processing fee, determined by the responsible authority.
41.(2): A responsible authority -
41.(2)(a): may, to the extent that it is reasonable to do so, require the applicant, at
the applicant's expense, to obtain and provide it by a given date with -
41.(2)(a)(i): other information, in addition to the information contained in the
application;
41.(2)(a)(ii): an assessment by a competent person of the likely effect of the proposed
licence on the resource quality; and
41.(2)(a)(iii): an independent review of the assessment furnished in terms of subparagraph
(ii), by a person acceptable to the responsible authority;
41.(2)(b): may conduct its own investigation on the likely effect of the proposed licence
on the protection, use, development, conservation, management and control of the water
resource;
41.(2)(c): may invite written comments from any organ of state which or person who has an
interest in the matter; and
41.(2)(d): must afford the applicant an opportunity to make representations on any aspect
of the licence application.
41.(3): A responsible authority may direct that any assessment under subsection (2)(a)(ii)
must comply with the requirements contained in regulations made under section 26 of the Environment Conservation Act, 1989 (Act No.
73 of 1989).
41.(4): A responsible authority may, at any stage of the application process, require the
applicant -
41.(4)(a): to give suitable notice in newspapers and other media -
41.(4)(a)(i): describing the licence applied for;
41.(4)(a)(ii): stating that written objections may be lodged against the application
before a specified date, which must be not less than 60 days after the last publication of
the notice;
41.(4)(a)(iii): giving an address where written objections must be lodged; and
41.(4)(a)(iv): containing such other particulars as the responsible authority may require;
41.(4)(b): to take such other steps as it may direct to bring the application to the
attention of relevant organs of state, interested persons and the general public; and
41.(4)(c): to satisfy the responsible authority that the interests of any other person
having an interest in the land will not be adversely affected.
After a responsible authority has reached a decision on a licence application, it must
promptly -
42.(a): notify the applicant and any person who has objected to the application; and
42.(b): at the request of any person contemplated in paragraph (a), give written reasons
for its decision.
This 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 entitlements to any existing lawful water use by the applicant.
43.(1): If it is desirable that water use in respect of one or more water resources within
a specific geographic area be licensed -
43.(1)(a): to achieve a fair allocation of water from a water resource in accordance with section 45 -
43.(1)(a)(i): which is under water stress; or
43.(1)(a)(ii): when it is necessary to review prevailing water use to achieve equity in
allocations;
43.(1)(b): to promote beneficial use of water in the public interest;
43.(1)(c): to facilitate efficient management of the water resource; or
43.(1)(d): to protect water resource quality, the responsible authority may issue a notice
requiring persons to apply for licences for one or more types of water use contemplated in
section 21.
43.(2): A notice in terms of subsection (1) must -
43.(2)(a): identify the water resource and the water use in question;
43.(2)(b): state where licence application forms may be obtained;
43.(2)(c): state the address to which licence applications must be submitted;
43.(2)(d): state the closing date for licence applications;
43.(2)(e): state the application fee; and
43.(2)(f): contain such other information as the responsible authority considers
appropriate.
43.(3): A notice in terms of subsection (1) must be made known by publishing the notice in
the Gazette at least 60 days before the closing date, giving suitable notice in newspapers
and other media and taking other steps to bring the notice to the attention of interested
persons.
43.(4): Section 41 applies to an application in terms
of this section as if the application had been made in terms of that section.
A responsible authority may, for good reason, condone a late application and charge a reasonable additional fee for processing the late application.
45.(1): A responsible authority must, after considering -
45.(1)(a): all applications received in response to the publication of a notice in terms
of section 43(1);
45.(1)(b): any further information or assessment obtained; and
45.(1)(c): the factors contemplated in section 27, prepare
a proposed allocation schedule specifying how water from the water resource in question
will be allocated.
45.(2): A proposed allocation schedule must, subject to subsection (3), reflect the
quantity of water to be -
45.(2)(a): assigned to the Reserve and any relevant international obligations;
45.(2)(b): assigned to meet the requirements of existing licences;
45.(2)(c): allocated to each of the applicants to whom licences ought to be issued in
order to redress the results of past racial and gender discrimination in accordance with
the constitutional mandate for water reform;
45.(2)(d): allocated to each of the applicants exercising existing lawful water uses to
whom the licensing authority determines that licences should be issued;
45.(2)(e): allocated to each of the applicants, taking into account the factors set out in
section 27; and
45.(2)(f): allocated to every other applicant by public tender or auction, subject to any
regulation made under section 26(1)(n).
45.(3): A responsible authority is under no obligation to allocate all available water.
45.(4): After completing a proposed allocation schedule the responsible authority must
publish a notice in the Gazette -
45.(4)(a): containing a copy of the proposed schedule, or stating the address where it may
be inspected;
45.(4)(b): inviting written objections to be submitted on the proposed schedule,
specifying an address to which the objections are to be submitted and specifying a date
before which the objections are to be submitted, which date must be not less than 60 days
after the date of publication of the notice; and
45.(4)(c): must consider what further steps, if any, are appropriate to bring the contents
of the notice to the attention of interested persons, and take those steps which the
responsible authority considers to be appropriate.
46.(1): After considering all objections received on the proposed allocation schedule on
or before the date specified in the notice contemplated in section 45(4), the responsible
authority must prepare a preliminary allocation schedule and publish a notice in the
Gazette -
46.(1)(a): containing a copy of the preliminary allocation schedule, or stating the
address where it may be inspected; and
46.(1)(b): stating that an appeal in respect of any unsuccessful objection to the
preliminary allocation schedule may be made in accordance with Chapter 15.
46.(2): If an appeal under subsection (1)(b) succeeds, the responsible authority must
amend the preliminary allocation schedule as directed by the Water Tribunal.
47.(1): A preliminary allocation schedule becomes a final allocation schedule -
47.(1)(a):
47.(1)(a)(i): if no appeal is lodged within the time limit;
47.(1)(a)(ii): if it has been amended following every successful appeal; or
47.(1)(a)(iii): if every appeal lodged is dismissed; and
47.(1)(b): on publication by the responsible authority of a notice in the Gazette -
47.(1)(b)(i): stating that a preliminary allocation schedule has become final; and
47.(1)(b)(ii): containing a copy of the final allocation schedule, or stating the address
where it may be inspected.
47.(2): A responsible authority must, as soon as reasonably practicable after a
preliminary allocation schedule becomes final, issue licences according to the allocations
provided for in it.
48.(1): Any licence issued pursuant to an application contemplated in section 43(1) replaces any existing lawful water use
entitlement of that person in respect of the water use in question.
48.(2): Notwithstanding the provisions of section 4, no
person to whom a general notice to apply for a licence has been directed in terms of section 43 in respect of an existing lawful water use
may exercise that water use -
48.(2)(a): after the closing date stated in the notice if that person did not apply for a
licence; or
48.(2)(b): after the licence application has been finally disposed of, if that person did
apply for a licence.
This 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 amendment 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 changes 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.(1): A responsible authority may review a licence only at the time periods stipulated
for that purpose in the licence.
49.(2): On reviewing a licence, a responsible authority may amend any condition of the
licence, other than the period thereof, if -
49.(2)(a): it is necessary or desirable to prevent deterioration or further deterioration
of the quality of the water resource;
49.(2)(b): there is insufficient water in the water resource to accommodate all authorised
water uses after allowing for the Reserve and international obligations; or
49.(2)(c): it is necessary or desirable to accommodate demands brought about by changes in
socio-economic circumstances, and it is in the public interest to meet those demands.
49.(3): An amendment contemplated in subsection (2) may only be made if the conditions of
other licences for similar water use from the same water resource in the same vicinity,
all as determined by the responsible authority, have also been amended in an equitable
manner through a general review process.
49.(4): If an amendment of a licence condition on review severely prejudices the economic
viability of any undertaking in respect of which the licence was issued, the provisions of
section 22(6) to (10) apply.
49.(5): A responsible authority must afford the licensee an opportunity to be heard before
amending any licence condition on review.
50.(1): A responsible authority may amend or substitute a licence condition -
50.(1)(a): if the licensee or successor-in-title has consented to or requested the
amendment or substitution;
50.(1)(b): to reflect one or more successors-in-title as new licensees; and
50.(1)(c): to change the description of the property to which the licence applies, if the
property described in the licence has been subdivided or consolidated with other property.
50.(2): The responsible authority may require the licensee -
50.(2)(a): to obtain the written consent of any affected person before amending or
substituting the licence; or
50.(2)(b): to make a formal application for the amendment or substitution in terms of
section 52;
50.(3): A responsible authority may only amend or substitute a licence condition under
this section if it is satisfied that -
50.(3)(a): the amendment or substitution will not have a significant detrimental impact on
the water resource; and
50.(3)(b): the interests of any other person are not adversely affected, unless that
person has consented thereto.
51.(1): A responsible authority may, after giving all parties an opportunity to be heard,
adjudicate upon conflicting claims between a licensee and a successor-in-title, or between
different successors-in-title, in respect of claims for the amendment or substitution of
licence conditions.
51.(2): A successor-in-title of any person to whom a licence to use water has been issued
-
51.(2)(a): may, subject to the conditions of the relevant licence and paragraph (b),
continue with the water use; and (b) must promptly inform the responsible authority of the
succession, for the substitution of the name of the licensee, for the remainder of the
term.
52.(1): A licensee may, before the expiry date of a licence, apply to the responsible
authority for the renewal or amendment of the licence.
52.(2): Unless an application for the renewal or amendment of a licence is made in terms
of section 50, it must -
52.(2)(a): be made in such form, contain such information and be accompanied by such
processing fee as may be determined by the responsible authority; and
52.(2)(b): be dealt with according to the procedure as set out in section 41.
52.(3): In considering an application to amend or renew a licence, the responsible
authority must have regard to the same matters which it was required to consider when
deciding the initial application for that licence.
52.(4): A responsible authority may amend any condition of a licence by agreement with the
licensee.
This Part deals with the consequences of contraventions 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.(1): A responsible authority may, by notice in writing to a person who contravenes -
53.(1)(a): any provision of this Chapter;
53.(1)(b): a requirement set or directive given by the responsible authority under this
Chapter; or
53.(1)(c): a condition which applies to any authority to use water, direct that person, or
the owner of the property in relation to which the contravention occurs, to take any
action specified in the notice to rectify the contravention, within the time (being not
less than two working days) specified in the notice or any other longer time allowed by
the responsible authority.
53.(2): If the action is not taken within the time specified in the notice, or any longer
time allowed, the responsible authority may -
53.(2)(a): carry out any works and take any other action necessary to rectify the
contravention and recover its reasonable costs from the person on whom the notice was
served; or
53.(2)(b): apply to a competent court for appropriate relief.
54.(1): Subject to subsections (3) and (4), a responsible authority may by notice to any
person entitled to use water under this Act suspend or withdraw the entitlement if the
person fails -
54.(1)(a): to comply with any condition of the entitlement;
54.(1)(b): to comply with this Act; or
54.(1)(c): to pay a charge which is payable in terms of Chapter 5.
54.(2): An entitlement may be suspended under subsection (1) -
54.(2)(a): for the period specified in the notice of suspension; or
54.(2)(b): until the responsible authority is satisfied that the person concerned has
rectified the failure which led to the suspension.
54.(3): A responsible authority may only suspend or withdraw an entitlement under
subsection (1) if the responsible authority has directed the person concerned to take
specified steps to rectify the failure within a specified period, and the person concerned
has failed to do so to the satisfaction of the responsible authority.
54.(4): The person concerned must be given an opportunity to make representations, within
a reasonable period, on any proposed suspension or withdrawal of an entitlement to use
water.
54.(5): A responsible authority may, for good reason, reinstate an entitlement withdrawn
under subsection (1).
55.(1): A licensee may offer to surrender any licence issued to that licensee under this
Chapter, whereupon, unless there is good reason not to do so, the responsible authority
must accept the surrender and cancel the licence.
55.(2): A responsible authority may refund to a licensee any charge or part of any charge
paid in respect of a licence surrendered under subsection
(1).
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