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Schedule 5: MODEL CONSTITUTION OF WATER USER ASSOCIATION

[ Sections 91(1)(f), 93(1) and 94(2) ]

S5.1.: Name of Association

The name of the Association is [specify the name] (hereinafter referred to as ``the Association'').

S5.2.: Application of the National Water Act of 1998 to the constitution

This constitution is subject to Chapter 8 of the National Water Act of 1998 (hereafter referred to as the Act) and Schedule 4 to the Act.

S5.3.: Objects of the Association

The objects of the Association are - [briefly describe the objects]

S5.4.: Principal functions of the Association

The principal functions to be performed by the Association in its area of operation are - [Note: The following are options. Others may be proposed. Choose and number your options.]

• To prevent water from any water resource being wasted.
• To protect water resources.
• To prevent any unlawful water use.
• To remove or arrange to remove any obstruction unlawfully placed in a watercourse.
• To prevent any unlawful act likely to reduce the quality of water in any water resource.
• To exercise general supervision over water resources.
• To regulate the flow of any watercourse by -
  • clearing its channel;
  • reducing the risk of damage to the land in the event of floods;
  • changing a watercourse back to its previous course where it has been altered through natural causes.
• To investigate and record -
  • the quantity of water at different levels of flow in a watercourse;
  • the times when; and
  • the places where water may be used by any person entitled to use water from a water resource.
• To construct, purchase or otherwise acquire, control, operate and maintain waterworks considered to be necessary for -
  • draining land; and
  • supplying water to land for irrigation or other purposes.
• To supervise and regulate the distribution and use of water from a water resource according to the relevant water use entitlements, by erecting and maintaining devices for -
  • measuring and dividing; or
  • controlling the diversion of the flow of water.

S5.5.: Ancillary functions of Associations

S5.5.(1): The Association may perform functions other than its principal functions only if it is not likely -
S5.5.(1)(a): to limit the Association's capacity to perform its principal functions; and
S5.5.(1)(b): to be to the financial prejudice of itself or its members.
S5.5.(2): Other functions of the Association may include - [Note: The following are options. Others may be proposed. Choose and number your options.]

• Providing management services, training and other support services to -
  • water services institutions; and
  • rural communities.
• Providing catchment management services to or on behalf of responsible authorities.

S5.6.: Founding members

S5.6.(1): The founding members of the Association are the members whose names appear in Annexure 1 of this constitution and who have been authorised by the proposed participants to act on their behalf in establishing the Association.
S5.6.(2): The founding members will, for purposes of arranging the first election of members of the Management Committee, be considered to be the Management Committee of the Association with powers and duties limited to arranging the election in accordance with this constitution.

S5.7.: Membership of the Association

S5.7.(1): The first members of the Association are the persons who, during the consultation process, indicated their willingness to become members of the Association and whose names appear in Annexure 2 of this constitution.
S5.7.(2): Application for new membership of the Association must be addressed to the Management Committee which must, at a meeting of the Committee, consider an application and approve it unless there is good reason to refuse it.
S5.7.(3): An association must allow a person to become a member of the Association if directed by the Minister to do so.
S5.7.(4): A member may only resign as a member of the Association with the approval of the Management Committee, which may not unreasonably withhold its approval. [Note: A reason for not accepting a resignation would be, for example, if the resignation would detrimentally affect the Association's ability to meet its financial commitments in respect of infrastructure provided to serve the member concerned.]

S5.8.: Register of members

All members must communicate their addresses from time to time to the person acting as secretary of the Association, who must keep a register of the names of members and of their addresses.

S5.9.: Rights of members

S5.9.(1): Membership of the Association does not give any member a right to any of the moneys, property or assets of the Association, but only gives members the privileges of membership, subject to such charges and reasonable restrictions as are imposed by the Management Committee from time to time.
S5.9.(2): A member whose application for membership has been approved is bound by the constitution and rules of the Association which are then in force or as they are subsequently amended.

S5.10.: Liability of members

The liability of members is limited to the amount of unpaid charges and interest thereon owing by them to the Association.

S5.11.: Qualification of candidates for membership of Management Committee

Any member of the Association is, subject to disqualifications contemplated in Schedule 4 to the Act, eligible for election as a member of the Management Committee. If the Association's area of operation is divided into sub-areas, a member will only be eligible for election as a member of the Management Committee for the sub-area in which that member resides.

S5.12.: Nomination of and voting for members of Management Committee

Any person whose name is on the voters list of the Association may nominate candidates for election as members of the Management Committee and may vote at an election of members of the Committee. A person whose name appears on a voters list prepared for a sub-area of the Association's area of operation, will be entitled to nominate candidates and to vote only in elections for that sub-area.

S5.13.: Membership of Management Committee

S5.13.(1): [Note: The following are options. Others may be proposed. Choose and number your options.]

• Option (a) The Management Committee of the Association will consist of [specify the number] members.
• Option (b) [Note: This option is additional to option (a) and applies where the area of operation of the Association is divided into sub-areas.] The area of operation of the Association will be divided into sub-areas as described in Annexure 3 to this constitution. Each area will be represented on the Management Committee on the basis set out in that Annexure.

S5.13.(2): Membership of the Management Committee will be determined by an election process in which all members whose names are on the Association's voters list may participate.
S5.13.(3):

• Option (a) Members will, subject to the disqualifications contemplated in Schedule 4, be elected for a fixed term of [specify period] years.
• Option (b) [Applies to election process only] Members will, subject to the disqualifications contemplated in Schedule 4, be elected for a fixed term of [specify period] years. The first election will take place as follows -
  1. one-third of the members elected who stand highest on the poll will hold office for a period of [specify period] years;
  2. one-third of the members elected who stand next highest on the poll will hold office for a period of [specify period] years; and
  3. the remaining members elected will hold office for a period of [specify period] years. If, in any case -
     1. no poll is required because the nominations received were not greater than the number of members to be elected; or
     2. two or more candidates have received an equal number of votes, the respective periods of office of the members will be determined by lot under supervision of the returning officer.

S5.13.(4): If a vacancy occurs on the Management Committee, the vacancy must be filled according to this item, provided that the member must be elected for a period equal to the remainder of the period for which the member who has vacated the office would otherwise have continued in office.
S5.13.(5): At least 30 days' notice of an election must be given to all members of the Association.

S5.14.: Appointment of chairperson and deputy chairperson

[Note: The following are options. Others may be proposed. Choose and number your options.]
S5.14.(1):

• Option (a) After the election of the Management Committee the members of that Committee must elect a chairperson and deputy chairperson of the Association from amongst their members. The Management Committee may appoint any person to chair the proceedings for that purpose.
• Option (b)
  1. After the election of the Management Committee the members of the Association must elect a chairperson and a deputy chairperson of the Association from amongst the elected members of the Management Committee. The members of the Association may appoint any person to chair the proceedings for that purpose.
  2. The chairperson and deputy chairperson hold office for a period of 12 months from the date of their election and may be re-elected.
  3. When the period of office of a chairperson or deputy chairperson expires, that person will, provided that he or she remains a member of the Association, remain in office until the next meeting of the Management Committee.
  4. A new chairperson and deputy chairperson of the Management Committee will be elected annually. Should any of these offices be vacated before the term expires, the office must be filled immediately according to the procedure set out in this item.

S5.15.: Voter's list

S5.15.(1): The founding members of the Association must select a person to prepare a voters list for the first election of members of the Management Committee. The voters' list must show -
S5.15.(1)(a): the names of all members included in Annexure 2 to this constitution and, where appropriate, the name of a member's accredited representative;
S5.15.(1)(b): particulars of each member's entitlement to water use; and
S5.15.(1)(c): the number of votes a member is entitled to.
S5.15.(2): If the Association's area of operation is divided into sub-areas, the voters' list must also be divided into subareas and the particulars referred to in subitem (1) must be shown under the respective subareas.
S5.15.(3): The number of votes will be determined on the following basis - [Note: The following are options. Others may be proposed. Choose and number your options.]

• Option (a) One vote per entitlement to water use.
• Option (b) A pro-rata number of votes in proportion to the quantity of water authorised under a particular entitlement, compared to the total quantity of water under all of the entitlements registered with the Association. In this calculation all fractions must be rounded off to the next higher figure.
• Option (c) A pro-rata number of votes in proportion to the quantity of water authorised under a particular entitlement, compared to the total quantity of water under all the entitlements registered with the Association. In this calculation-
  1. all fractions must be rounded off to the next higher figure; and
  2. no member will be awarded more than 10 votes.
• Option (d) One vote for every five hectares or part of five hectares of land that can be irrigated in terms of a member's entitlement.
• Option (e) One vote for every five hectares or part of five hectares of land that can be irrigated in terms of a member's entitlement, provided that no member will be awarded more than 10 votes.

S5.15.(4): If the entitlement to use water is not in the name of a natural person, the holder must nominate an accredited representative whose name must appear on the voters' list and who may exercise the vote.
S5.15.(5): If the entitlement is in the name of two or more persons they must designate one of their numbers to represent them and that person's name must appear on the voters' list and he or she may exercise the vote.
S5.15.(6): The voters' list must annually be revised by the Management Committee and also whenever there is an amendment to the Association's area of operation.

S5.16.: Appointment of employees

[Note: The appointment of a Chief Executive Officer for the Association is dealt with in Schedule 4 to the Act.]
S5.16.(1): The Management Committee may employ such persons as it considers necessary to perform the Association's functions under this constitution.
S5.16.(2): The appointment of employees or any change in their conditions of service must be approved by resolution of the Management Committee.
S5.16.(3): All employees of the Association will remain in office despite any change in the composition and membership of the Management Committee.

S5.17.: Raising of loans

S5.17.(1): The Management Committee may raise by way of loans, including bank overdrafts, any funds required by it for the purpose of carrying out any of its functions under this constitution or the Act.
S5.17.(2): Whenever the Management Committee proposes to raise a loan, it must give notice in writing of its intention, setting out details of the proposal. The notice must be given to every member of the Association not less than 21 days before the date of the meeting of the Committee at which the proposal will be considered.
S5.17.(3): No loan may be raised without a resolution of the Management Committee passed at a meeting at which not less that two-thirds of the members of the Committee are present.

S5.18.: Charges and the recovery of charges

S5.18.(1): For the purpose of defraying any expenditure that the Management Committee has lawfully incurred or may lawfully incur in carrying out its functions and duties it may annually assess charges on members according to the pricing strategy for water use set by the Minister.
S5.18.(2): The Management Committee may recover the charges assessed from either -
S5.18.(2)(a): the owners of the land concerned; or
S5.18.(2)(b): any person to whom water is supplied on the land.
S5.18.(3): Whenever the Management Committee has assessed a charge, the Committee must prepare an assessment roll setting forth -
S5.18.(3)(a): the name of each member liable to pay charges;
S5.18.(3)(b): a description of the piece of land, which may be a specially delineated area, in respect of which the charge is assessed;
S5.18.(3)(c): the quantity of water or abstraction time period to which the member is entitled;
S5.18.(3)(d): the amount of the charge assessed;
S5.18.(3)(e): the date or dates on which payment is due and the amount due on each date; and
S5.18.(3)(f): the rate of interest payable on non-payment and the effective date of interest.
S5.18.(4): A copy of the assessment roll must lie open for inspection in the office of the Association at all reasonable times by any member of the Association.

S5.19.: Annual Report

[Note: The following are options. Others may be proposed. Choose and number your options.]

• Option (a)

  The procedure as set out in Schedule 4 to the Act applies. [Note: This option is only recommended for use by well-established irrigation boards with a large membership and which are transformed into water user associations after promulgation of the Act.]

• Option (b)

  The Management Committee must, within three months after the end of the Association's financial year, convene a general meeting of members and must at the meeting -

  1. table an audited financial statement of the Association's accounts for the preceding financial year, including full particulars of any remuneration paid by the Association to members of the Management Committee and employees of the Association; and
  2. give an account to the members of its activities during the year.

S5.20.: Winding up

[Note: The following are options. Others may be proposed. Choose and number your options.]

• Option (a)
  1. The Association may be dissolved by a resolution passed at a special general meeting held for that purpose, provided that -
     1. the resolution is passed by a majority of two-thirds of the members present and entitled to vote at the meeting; and
     2. the resolution is confirmed at a further special general meeting held not less than four weeks after the preceding special general meeting by a majority vote of members entitled to vote thereon.
  2. A meeting passing a resolution referred to in subitem (1)(i) of this constitution may also pass resolutions by a majority vote for -
     1. the appointment of a liquidator; and
     2. the disposal of surplus funds and assets of the Association after winding up and after the payment of all debts and obligations of the Association, provided that any surplus assets may only be transferred to an Association or institution with objects similar to those of the Association, or to the Minister.
• Option (b)

  The affairs of the Association will be wound up by a person appointed by the Minister in accordance with any directives given by the Minister, and subject to section 97 of the Act.

LIST OF FOUNDING MEMBERS ANNEXURE 1

(In alphabetical order)

LIST OF MEMBERS

ANNEXURE 2

(In alphabetical order)

DESCRIPTION OF SUB-AREAS AND REPRESENTATION IN MANAGEMENT COMMITTEE

ANNEXURE 3