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This Chapter deals with the establishment, powers and disestablishment of water user associations. Although water user associations are water management institutions their primary purpose, unlike catchment management agencies, is not water management. They operate at a restricted localised level, and are in effect co-operative associations of individual water users who wish to undertake water-related activities for their mutual benefit. A water user association may exercise management powers and duties only if and to the extent these have been assigned or delegated to it. The Minister establishes and disestablishes water user associations according to procedures set out in the Chapter. A water user association for a particular purpose would usually be established following a proposal to the Minister by an interested person, but such an association may also be established on the Minister's initiative. The functions of a water user association depend on its approved constitution, which can be expected to conform to a large extent to the model constitution in Schedule 5. This Schedule also makes detailed provisions for the management and operation of water user associations. Although water user associations must operate within the framework of national policy and standards, particularly the national water resource strategy, the Minister may exercise control over them by giving them directives or by temporarily taking over their functions under particular circumstances.
Existing irrigation boards, subterranean water control boards and water boards established for stock watering purposes will continue in operation until they are restructured as water user associations.
91.(1): A proposal to establish a water user association must contain at least -
91.(1)(a): the reasons for making the proposal;
91.(1)(b): a proposed name and area of operation for the association;
91.(1)(c): the proposed activities of the association;
91.(1)(d): a description of any existing or proposed waterwork within the proposed area of
operation which is relevant to the proposed activities of the association;
91.(1)(e): a description of the water use licences or any other authorisations which the
proposed members hold or intend applying for;
91.(1)(f): the proposed constitution of the association, together with an explanation for
any provisions which differ from those of the model constitution contained in Schedule 5;
91.(1)(g): a list of the proposed members or categories of members of the association; and
91.(1)(h): an indication whether there has been consultation in developing the proposal
and the results of the consultation.
91.(2): The Director-General may assist a person to develop such a proposal.
92.(1): The Minister may on his or her own initiative or after receiving a proposal
containing the information required in terms of section 91(1), by notice in the Gazette -
92.(1)(a): establish a water user association, give it a name, determine its area of
operation and approve its constitution subject to section
93(2); or
92.(1)(b): amend the name, area of operation or approve an amendment to the constitution
of an established water user association.
92.(2): The Minister may -
92.(2)(a): require a person who has submitted a proposal in terms of subsection (1) to
provide the Minister with additional information to that required by section 91(1); and
92.(2)(b): instruct the Director-General to conduct an investigation regarding -
92.(2)(b)(i): the establishment of a water user association; or
92.(2)(b)(ii): a proposal submitted in terms of subsection (1).
92.(3): Before the establishment of a water user association the Minister must -
92.(3)(a): publish a notice in the Gazette -
92.(3)(a)(i): setting out the proposed establishment of the water user association, the
proposed name and the proposed area of operation; and
92.(3)(a)(ii): inviting written comments to be submitted on the proposals, specifying an
address to which and a date before which the comments are to be submitted, which date may
not be earlier than 60 days after publication of the notice;
92.(3)(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
92.(3)(c): consider any comments received on or before the date specified in paragraph
(a)(ii).
92.(4): The Minister need not fulfil all the requirements of subsection (3), if there has
been sufficient consultation on a proposal submitted in terms of section 91.
92.(5): The Minister may -
92.(5)(a): recover the cost of complying with subsection (3) from the water user
association once it has been established; or
92.(5)(b): require the person proposing the establishment of the water user association to
pay the costs in advance.
93.(1): Schedule 5 contains a model
constitution which may be used as a basis for drawing up and proposing a constitution for
a proposed water user association.
93.(2): The constitution of a water user association must contain at least -
93.(2)(a): details of the principal and ancillary functions of the association;
93.(2)(b): the procedures and requirements for admitting new members to the association;
93.(2)(c): the voting powers of members;
93.(2)(d): procedures for terminating membership;
93.(2)(e): procedures for electing the management committee of the association;
93.(2)(f): procedural requirements for appointment of employees of the association;
93.(2)(g): procedural requirements for obtaining loans; and
93.(2)(h): the financial obligations of members towards the association.
93.(3): A constitution must also incorporate such other provisions as the Minister may
reasonably require and must be adopted by the members of the association and approved by
the Minister before it can exercise any powers or perform any duties.
93.(4): A constitution adopted by a water user association is binding on all its members.
94.(1): A water user association is a body corporate and has the powers of a natural
person of full capacity, except those powers which -
94.(1)(a): by nature can only attach to natural persons; or
94.(1)(b): are inconsistent with this Act.
94.(2): Schedule 4 (excluding item 4(3) of
Part 1 of that Schedule) applies to a water user association as if -
94.(2)(a): the water user association were an institution; and
94.(2)(b): a member of the management committee were a director, within the meaning of
that Schedule, except to the extent that the Minister may otherwise direct.
95.(1): The Minister may, after consulting with a water user association, direct that a
person be admitted as a member of the association on such conditions as are fair and
equitable.
95.(2): A water user association must comply with a directive given under subsection (1).
95.(3): If a water user association -
95.(3)(a): is in financial difficulties or is being otherwise mismanaged;
95.(3)(b): has acted unfairly or in a discriminatory or inequitable way towards any member
of the association;
95.(3)(c): has failed to admit persons to membership unfairly or on discriminatory
grounds;
95.(3)(d): has failed to comply with any directive given by the Minister under this Act;
95.(3)(e): has obstructed the Minister or any other water management institution in
exercising a power or performing a duty in terms of this Act;
95.(3)(f): is unable to exercise its powers or perform its duties effectively due to
dissension among the management committee or its members;
95.(3)(g): has failed to comply with its constitution or this Act; or
95.(3)(h): has become redundant or ineffective, the Minister may -
95.(3)(h)(i): direct the association to take any action specified by the Minister;
95.(3)(h)(ii): withhold any financial assistance which might otherwise be available to the
water user association until the association has complied with such directive; or
95.(3)(h)(iii): by notice addressed to the association and the member concerned, terminate
the office of that member of the management committee and arrange for the resulting
vacancy on the management committee to be filled.
95.(4): A directive contemplated in subsection (3)(i) must state -
95.(4)(a): the nature of the deficiency;
95.(4)(b): the steps which must be taken to remedy the situation; and
95.(4)(c): a reasonable period within which those steps must be taken.
95.(5): If the water user association fails to remedy the situation within the given
period, the Minister may -
95.(5)(a): after having given that association a reasonable opportunity to be heard; and
95.(5)(b): after having afforded the association a hearing on any submissions received,
take over the relevant function of the association, or appoint a suitable person to take
over the power or duty.
95.(6): If the Minister, or a person appointed by the Minister, takes over a power or duty
of a water user association -
95.(6)(a): the Minister or the appointee may do anything which the association might
otherwise be empowered or required to do in terms of its constitution or by or under this
Act, to the exclusion of the association;
95.(6)(b): the management committee of the association may not, while the Minister or the
appointee is responsible for that power or duty, exercise any of its powers or perform any
of its duties relating to that power or duty;
95.(6)(c): an employee or a contractor of the association must comply with a directive
given by the Minister or the appointee;
95.(6)(d): as soon as the Minister is satisfied that the association is once more able to
exercise its powers and perform its duties effectively, the Minister or the appointee, as
the case may be, must cease exercising such powers and performing such duties; and
95.(6)(e): the Minister may recover from the association all reasonable costs incurred by
the Minister or the appointee, including -
95.(6)(e)(i): the reasonable fees or disbursements of the appointee; and
95.(6)(e)(ii): any losses suffered as a result of lawful and reasonable action taken under
this section, except to the extent that the loss is caused or contributed to by the
negligence of the Minister or the appointee or any person under their control.
96.(1): The Minister may, by notice in the Gazette, disestablish an association -
96.(1)(a): in circumstances provided for in the constitution of the association;
96.(1)(b): if the functions of the association are, by agreement with another water
management institution, to be combined with, or taken over by that water management
institution;
96.(1)(c): if it is in the best interests of the association or its members;
96.(1)(d): if an investigation of its affairs or financial position reveals that
disestablishment is appropriate;
96.(1)(e): if the Minister has taken over a power or duty of the association as a result
of dissensions among the management committee or its members; or
96.(1)(f): if the association is no longer active or effective.
96.(2): Before disestablishing a water user association the Minister must -
96.(2)(a): publish a notice in the Gazette -
96.(2)(a)(i): stating the intention to disestablish the water user association;
96.(2)(a)(ii): setting out the reasons for disestablishing the water user association; and
96.(2)(a)(iii): inviting written comments on the proposal, specifying an address to which
and a date before which the comments are to be submitted, which date may not be earlier
than 60 days after publication of the notice;
96.(2)(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
96.(2)(c): consider all comments received on or before the specified date.
97.(1): When a water user association is disestablished, its affairs must be wound up -
97.(1)(a): as provided for in its constitution; or
97.(1)(b): by a person appointed by the Minister in accordance with directives given by
the Minister if the constitution does not provide for winding up.
97.(2): The costs of winding up a water user association are a cost against the estate of
the association.
97.(3): Creditors of a water user association must be paid according to the order of
preference established by the Insolvency Act, 1936 (Act No. 24 of 1936).
97.(4): If the affairs of a water user association are wound up, the Minister may direct
that an amount equivalent to any financial contributions with interest made to the
association from public funds be reimbursed, before assets are distributed among the
members of the association.
97.(5): No transfer duty, other tax or duty is payable in respect of the transfer of any
assets under subsection (4).
98.(1): This section applies to -
98.(1)(a): any irrigation board or subterranean water control board established by or
deemed to be an irrigation board in terms of any law in force immediately before the
commencement of this Act;
98.(1)(b): the Kalahari West Water Board, established by Government Notice No. 143 of 13
August 1982;
98.(1)(c): the Karos-Geelkoppan Water Board, established by Government Notice No. 145 of 7
October 1983; and
98.(1)(d): the Kalahari East Water Board, established by Government Notice No. 2233 of 4
November 1988. each of which is a board for the purposes of this section.
98.(2): A board continues to exist until it is declared to be a water user association in
terms of subsection (6) or until it is disestablished in terms of the law by or under
which it was established, which law must, for the purpose of such disestablishment, be
regarded as not having been repealed by this Act.
98.(3): Subject to subsection (4) -
98.(3)(a): the name, area of operation, management, property, rights, liabilities,
obligations, powers and duties of a board remain the same as immediately before the
commencement of this Act;
98.(3)(b): this section does not affect the continuity, status, operation or effect of any
act or omission of a board, or of any by-law made by a board, before the commencement of
this Act;
98.(3)(c): any person holding office with a board when this Act commences continues in
office for the term of that person's appointment; and
98.(3)(d): if a position becomes vacant prior to the declaration of the board as a water
user association, the board may fill the vacancy according to the procedures laid down by
or under the law which applied to that board immediately before the commencement of this
Act.
98.(4): Within six months of the commencement of this Act, a board must prepare and submit
to the Minister a proposal, prepared according to section
91, to transform the board into a water user association.
98.(5): The Minister may accept the proposal contemplated in subsection (4), with or
without amendments, or reject it.
98.(6): If the Minister accepts the proposal, the Minister must by notice in the Gazette -
98.(6)(a): declare the board to be a water user association;
98.(6)(b): give it a name;
98.(6)(c): determine its area of operation; and
98.(6)(d): approve its constitution.
98.(7): Upon the publication of a notice under subsection (6), every property, right and
liability of the board becomes a property, right and liability of the relevant water user
association.
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