The Water Bill, 2001

This is a draft Water Bill and is is a working document and not a formal document. As such it should not be interpreted as the policy of the Government of Swaziland until it has been finally agreed and adopted by Cabinet and His Majesty as national legislation.

PART XII MISCELLANEOUS

Special Provisions Relating to the and Great Usuthu (Lusutfu) and Little Usuthu (Lusushwana) Rivers

80. (1) If at the request of the Electricity Board the Board has issued a permit under the repealed Act to a person in the special area which contains conditions requiring periodic reductions in the quantity of permitted water, the permit issued under this Act shall contain the like provision.

(2) If the Board reduces for a period the quantity of water which may be diverted, stored, or used under a permit referred to in subsection (1), the Board shall send a notice to the permit holder by registered post setting forth the period which such reduction shall be made and the nature of the reduction and shall, in such notice, direct the permit holder to take such steps as may be specified in the notice to give effect to such reduction.

(3) The Electricity Board shall pay to any person who is ordered to reduce the quantity of water as provided in subsection (2) such compensation arising out of such reduction as may be agreed upon, or failing agreement, determined by the Authority.

(4) For purposes of this Section, "The Electricity Board" means the Board established under Section 3 of the Electricity Act 1963.

(5) Special area means the area defined in the schedule in Notice No. 61 of 1964 dated the nineteenth day of May 1964 and declared in that notice to be a special river control area in terms of Section 18 of the Electricity Act, 1963.

Alteration of watercourse

81. (1) A person shall not alter or divert a course of a watercourse without a permit from the Board.

(2) If the course of a watercourse is diverted from its original channel by natural causes or otherwise, the ownership of the lands on the banks of the original course and the boundaries of such lands shall not be affected.

(3) If a course of a watercourse is diverted by natural causes or otherwise and any works of a permit holder are thereby damaged or rendered of less or no effect, the permit holder shall apply to the Board for an amendment to the permit holder's permit, or for a new permit to move the point of diversion or alter affected works, or both, so that the permit holder may obtain the full benefit of the permitted quantities of water.

(4) Amendments made under subsection (3) may be for a stated temporary or permanent period.

Re-establishing original channel

82. (1) If the course of a watercourse is diverted by natural causes any holder of a permit whose point of diversion is downstream of the point of such natural diversion may apply to the Board to return the watercourse to its original cause.

(2) An application under this Section shall be made within five years of the natural diversion occurring.

Temporary permit

83. (1) The Board may on the application of any person issue a temporary permit for the diversion, storage, or use of water which is of a temporary or non-recurring nature.

(2) A temporary permit shall only authorize the diversion, storage, or use of water which is available after the requirements of all permit holders on the same watercourse have been met in full.

(3) A temporary permit may be for any period or periods up to a maximum of three years but it shall not be renewable beyond three years.

(4) A temporary permit shall not provide the holder with any preference or other right in an application for a permit.

(5) A person applying to the Board for a temporary permit shall pay the same administrative fee, if any, and shall provide the Board with the same information as is required for an application for a permit and shall in addition satisfy the Board that the use is for a temporary or non-recurring nature.

(6) The Swaziland Railway, as defined in Section 2 of the Swaziland Railway Act No. 15 of 1962, may in an emergency for construction or maintenance purposes apply for a temporary permit to the Board without paying a fee or providing the full information required by subsection (5) and the Chairperson of the Board or any member may give authority in writing for the use of such water as has been requested and the provision of subsection (2) shall not apply.

(7) If the exercise of the rights under a temporary permit by the Swaziland Railway causes damage or loss to any person holding a permit on the river or to any person lawfully using water from the watercourse, the Swaziland Railway shall pay such person or persons such compensation as may be agreed or, failing agreement, may be ordered by the Authority.

Recording of permits on Title Deed Land

84. (1) Whenever a permit has been issued under this Act for the diversion, storage, or use of water on land described in such permit, the Board shall, by notice in writing, direct the Registrar of Deeds to note such permit on the title deed of that land.

(2) If a permit noted in terms of subsection (1) is subsequently canceled, withdrawn or substituted by any other permit issued by the Board in terms of the provisions of this Act, the Board shall, by notice in writing, notify the Registrar of Deeds of such cancellation, withdrawal or substitution and the said Registrar shall thereupon make the necessary notes on the relevant title deed in accordance with the directions contained in such notice and in the manner in which the original note was made.

(3) The document conveying the direction or notice referred to in subsections (1) and (2), respectively, shall set forth:

(a) a description of the land in question and the number and date of its title deed;

(b) the name of the proprietor of the land;

(c) the number and date of the permit to be noted, canceled, withdrawn or substituted, as the case may be, and, where applicable, shall be accompanied by a copy of the relevant permit duly certified by a person authorized thereto by the Board, and the Registrar of Deeds shall cause the said copy to be filed of record in the deeds office.

(4) The Registrar of Deeds shall upon receipt of any notice or permit and free of charge make the necessary notes on the relevant title deeds and shall file the certified copy of such permit or notice as a document of record in the deeds office.

Collection of fees and charges

85. (1) Where a fee or charge has been prescribed pursuant to a regulation, the Board shall be entitled to recover the amounts payable from -

(a) the proprietors of the land in respect of which fees or charges have been assessed; or

(b) persons entitled to use water.

(2) Fees or charges so assessed in respect of water used on land shall be a charge upon the land in respect of which the fees or charges have been assessed, and any person who becomes the proprietor of any such land shall be liable for any such fees or charges which remain unpaid at the time when becoming the proprietor.

(3) The Board may, in addition to any action it may take in terms of subsection (1) for the recovery of any fees or charges referred to there in and which have not been paid on due date, stop the supply of water from the works in question to the land in respect of which such water is supplied, or to the person who is being supplied with water, or suspend the permit in terms of which the water is being used, as the case may be, until the said fees or charges have been paid, and the Board shall not be obliged, after the amount due has been paid, to supply any water so stopped or to pay any compensation for any loss sustained by any person consequent upon the stopping of the said supply of water or the suspension of the said permit.

(4) Where fees or charges have been assessed as referred to in subsection (1) or (2) in respect of any land, the Board shall in writing advise the Registrar of Deeds accordingly, and thereupon no transfer of such land or any interest in such land shall be passed by the said Registrar until a certificate signed by a person authorized thereto by the Board has been produced stating all fees or charges assessed on such land have been paid.

(5) A suspension of a permit or the supply of water under subsection (3) shall not relieve any person from any liability, in respect of the period of such suspension, of any fees or charges assessed under this Act or regulations.

Powers of Inspectors

86. (1) Every inspector appointed under this Act shall be furnished with a certificate signed by the Director stating that the inspector has been designated as an inspector for the purposes of this Act.

(2) An inspector shall, on demand by any person affected by the exercise or the performance of any power or function under this Act, exhibit the certificate referred to in subsection (1).

(3) An inspector may, for the purposes of this Act:

(a) without previous notice, at any time enter upon any land and at all reasonable times enter any premises to ensure compliance with the Act and, after having informed the person who is for the time being in charge or control of such land or premises of the purpose of the visit if any such person can readily be found thereon, make such examination or inspection of any such land or premises;

(b) take gauging or readings of any water contained in or flowing in any works or which is being used to irrigate any area, as the inspector may deem necessary;

(c) at any reasonable time, while the inspector is upon the land or upon or in any premises or otherwise, question any person:

i) who uses or intends to use water on the said land; or

ii) who has constructed or supplied or is constructing or any works or supplying any component thereof in connection with such use;

iii) who is an employee of a person mentioned in paragraph (ii) in the presence of or apart from others; or

iii) who discharges effluent;

(d) require from any person or employee the production then and there, or at a time and place fixed by the inspector, of any book, list, record, notice, data print outs, or other document which is or has been upon or in the premises or in the possession or custody or under the control of such person or employee if in the inspector's opinion examination of that book, list, record, notice or document is necessary for the purpose of the inspection;

(e) examine and make extracts from and copies of any such books, list, record, notice, print out or document, and require from such person or employee an explanation of any entries in any such book, list, record, notice or document, and seize any such book, list, record, notice, or document if the inspector believes on reasonable grounds that an offense has been committed ;

(f) take samples of any substance or thing or effluent;

(g) conduct tests or take measurements;

(h) initiate any actions which are reasonable for carrying out an inspection.

(4) For the purposes of carrying out an investigation under this Act, an inspector may:-

(a) enter any premises or gain access to any place, except for a private dwelling where the investigator has reasonable ground to believe that an offense has been committed under this Act and there is in place something that may be evidence as to the commission of an offense;

(b) seize anything the investigator believes, on reasonable grounds, may provide evidence of the commission of an offense under the Act.

(5) A person or employees referred to in subsections (3) or (4) shall at all times provide such reasonable facilities as are required by an inspector for the purpose of exercising the powers under this said Section or Act.

(6) A person who:-

(a) hinders or obstructs an inspector in exercising powers or the performance of duties; or

(b) without valid excuse, refuses or fails to answer to the satisfaction of the inspector any questions which an inspector has put to the person; or

(c) refuses or fails to comply with any reasonable requirement of an inspector in the exercise of powers or performance of ones duties under this paragraph; or

(d) wilfully furnishes to an inspector any information which he reasonably knows to be false or misleading; Shall be guilty of an offence.

Liability for Damage

87. Every holder of a permit, a temporary permit or an effluent control permit, or a person who uses water without such a permit, shall take reasonable care to avoid causing damage to land, works, undertakings, crops, trees, or other property and shall make full compensation to the owner for any damage or loss resulting from the construction, operation or maintenance of the holder's works or from the use of the water without a permit.

Right of entry into land

88. (1) Any person authorized thereto in writing by the Director or the Board may, after reasonable notice to the proprietor or occupier of any land, enter upon such land with such men, animals, vehicles, appliances and instruments and do all such acts thereon as may be necessary for the purpose of making any inquiries or undertaking any investigations with a view to determine the feasibility of constructing, enlarging, extending construction camps or other preliminary work which the Director or the Board may consider necessary in connection with any such work or for the purpose of ascertaining whether any provision of this Act or any regulation made or condition imposed thereunder has been contravened, provided that a person shall not enter upon any land, building or an enclosed space attached to a dwelling except with the consent of the occupier of that building or dwelling; provided further, that in the exercise of such power of entry under this subsection as little damage as possible shall be caused on the building or enclose space.

(2) The person making an entry under subsection (1) shall repair any damage caused or pay such compensation for any damage caused as may be agreed upon with the occupier, or failing such agreement determined by the Authority.

(3) A member of the Authority or of the Board or a person authorized thereto in writing by the chairperson of the Authority or authority person or Board may enter upon any land for the purpose of making any inspection or carrying out any duty which the member of the Authority or Board or person authorized may consider necessary in connection with the performance of its functions under this Act.

(4) A person who prevents any entry or the exercise of any power authorized by this Section or willfully obstructs or hinders any person so entering in carrying out such person's powers or duties under this Act shall be guilty of an offense and liable, on conviction, to the penalties prescribed in Section 90.

Service of notices and documents

89. (1) Any notice, order or other document required by this Act to be served upon any person shall be deemed to have been duly served if it has been:-

(a) delivered to such person personally or,

(b) if personal service is not possible, left at or sent by registered post to the person's last known ordinary residence or published in the Gazette and newspapers circulating in the area.

(2) Any notice, order or other document required to be served by this Act upon the Authority, the Board or an Irrigation District or Project Board shall be deemed to have been duly served if it has been delivered or left at or sent by registered post to the office of the Authority, the Board, or Irrigation District as the case may be or, in the case of an Irrigation District only, to the last known ordinary residence of the chairperson or the secretary of the Irrigation District.

(3) Any notice, order or other document which, purporting to be lawfully made, is issued in good faith under this Act shall be valid, according to the terms thereof, not withstanding any want of form or lack of authority on the part of any person to issue or authenticate it if the authority is subsequently conferred upon such person.

Offences and penalties

90. (1) A person, unless that person has the lawful right or authority, the proof whereof shall lie upon that person, who:-

(a) constructs, alters, enlarges or obstructs works or destroys, defaces or moves any level mark, beacon or other structure or appliance erected or made in connection with any work; or

(b) interferes with or alters the flow of the water contained in or flowing in or from works or interferes with or alters the flow of the water of a watercourse, or interferes with the distribution of any such water, or takes water, including groundwater, in excess of the quantity entitled to the person or when the person is not entitled to do so, or uses water in a manner contrary to this Act; or

(c) while using or being liable for the maintenance of works, wastes or does not take due precaution to prevent waste of water from any such works, or fails to maintain the works and keep it in good repair; or

(d) being a proprietor of land in respect of which fees or charges have been assessed, takes or uses water from the works in connection with which such fees or charges have been assessed, after the supply of water from such works to his land has been stopped by the Board or, as the case may be, by the Irrigation District concerned, or takes or uses water after the Board has suspended the permit in terms of which the water may be used, by reason of a default on the part of the proprietor; or

(e) obstructs an inspector in the exercise of the duties of the inspector under this Act; or

(f) wastes water; or

(g) aids or abets or permits any act or default referred to in any of the preceding paragraphs; or

(h) falsifies any records required to be kept under the Act or mixes substances which will change the nature of any samples required to kept under this Act;

(i) contravenes or permits the contravention of or fails to comply with any provision of this Act or with any condition imposed in any permit, groundwater permit, borehole drilling permit, or effluent control permit issued by the Board under this Act, shall be guilty of an offense and liable, in the case of a first conviction, to a fine not exceeding five thousand Emalangeni or imprisonment not exceeding five months or both, and, in the case of a second or subsequent conviction, a fine not exceeding ten thousand Emalangeni or imprisonment not exceeding ten months, or both.

(2) Any person who causes or permits any water to become polluted shall be guilty of an offense and liable, in the case of a first conviction, to a fine not exceeding fifty thousand Emalangeni or imprisonment not exceeding five years or both, and in the case of a second or subsequent conviction, to a fine not exceeding on hundred thousand Emalangeni or imprisonment not exceeding ten years or both.

(3) In a prosecution under this Section -

(a) the owner or lessee or occupier of any land or an agent or servant of the owner, lessee or occupier;

(b) the owner, operator, manager, employee or person responsible for any works or industrial undertaking, may be charged with an offense under the Act.

(4) If a corporation commits an offense under the Act, any officer, director or agent of the corporation who directed, authorized or acquiesced in or participated in committing that offence is guilty of the offence and liable to the punishment for the offence, whether or not the corporation has been prosecuted for or convicted of the offence.

(5) A person who contravenes any provision of this Act for which no penalty is expressly provided shall be liable, on conviction, to a fine not exceeding one thousand Emalangeni or imprisonment not exceeding one month, or both.

(6) Any regulations made by the Minister under this Act may impose penalties, not exceeding the penalties referred to in subsections (1) or (2) for an offence against such regulations.

(7) A person who has been convicted of any offence under this Act, and who after such conviction persists in the course of conduct which constituted the said offence shall be guilty of a continuing offence and liable, on conviction -

(a) in the case of an offense referred to in subsection (2), to a fine not exceeding one thousand Emalangeni; or

(b) in the case of any other offense to a fine not exceeding two hundred and fifty Emalangeni, in respect of every day that the person so persists or has so persisted or as may be recommended in the effluent control regulations.

(8) If in any proceedings under subsection (1) in which it is alleged that a person has:

(a) Interfered with the distribution of water contained or flowing in or from a works or a watercourse, or has taken more water than the person is entitled to take, and it is proved that the said distribution was interfered with or that more water was taken that the said person was entitled to, or that the said water was taken at a time when such person was not entitled to take it, the said person shall be presumed, until the contrary is proved, to have taken more water than the person was entitled to or to have taken it at a time of when the person was not entitled to take it;

(b) taken water, at a time when the person was not entitled to take such water; it is proved that such water was running onto or found on any land or running into or found in any dam belonging to that person, the onus of proving that the person was entitled to such water or that it was so taken or used without that person's knowledge shall be upon that person.

Award of damages in criminal proceedings

91. (1) Whenever any person is convicted of an offense under this Act and it appears that such person has by that offense caused loss or damage to any Irrigation District, Project Board, Authority, Water Users Association or proprietor concerned as the case may be, the court in the same proceedings at the written request of the Irrigation District, Board, Water Users Association or proprietor concerned, as the case may be, and in the present of the convicted person, enquire summarily and without pleadings into the amount of the loss or damage so caused.

(2) Upon proof of such amount, the court shall give judgment therefor against the convicted person in favour of the Irrigation District, Board, or Authority, Water Users Association or proprietor concerned, as the case may be, and such judgment shall be of the same force and effect and be executable in the same manner as if it had been given in a civil action duly instituted before such court:

(3) a judgement shall not be given under this Section for a sum exceeding two thousand Emalangeni.

Evidence

92. (1) A copy of the minutes of the proceedings of any meeting of the Authority or the Board or an irrigation district or a committee of the Authority or the Board or such Irrigation District, purporting to be signed by the chairperson of that meeting, and certified under the hand of the chairperson for the time being of the Authority or Board or Irrigation District, or committee as a correct copy of the minutes of that meeting shall be prima facie evidence in all courts of the proceedings of that meeting. (2) Until the contrary is proved, every such meeting of the proceedings of which minutes have been so signed and certified, shall be deemed to have been duly convened and held.

Transitional Provisions

93. (1) The title of the Government in any works or in lands used in connection with any works obtained or held under any provision in the repealed Act shall continue under the provision of this Act.

(2) Any agreement of any kind entered into by the Government or the Minister on behalf of the Government with any person for the operation or maintenance of any works may be transferred by the Government or the Minister to the Authority as agent of the Government and the Authority or its duly appointed delegate may there after exercise all the rights and shall be liable for all the obligations of the Government or the Minister under such agreement.

(3) Any claim by the Government or the Minister against any person or any claim by a person against the Government or the Minister arising out of a provision in the repealed Act which has not been finally settled when this Act comes into force shall be finally settled under the provision of the repealed Act as if the repealed Act had not been repealed.

(4) The liability of any person for unpaid charges, assessments, loans or similar matters shall continue notwithstanding the repeal of the repealed Act and the Authority or agent of the Government or the Minister may recover the same under the provisions of the repealed Act.

(5) All regulations made pursuant to the provisions of the repealed Act shall, in so far as they are not inconsistent with the provisions of this Act, remain in full force and effect.

(6) All servitudes granted or continued in force by the provisions of the repealed Act shall remain in full force and effect so long as they are not inconsistent with this Act.

(7) All orders, directions, permits, apportionment, exemptions, or permits made or issued under the repealed Act and all powers delegated or authorizations given to inspectors under the repealed Act and which are valid and subsisting at the date this Act comes into force shall in so far as they are not inconsistent with the provisions of this Act remain in full force and effect.

(8) Any application to the Board for a hearing or for reconsideration of any decision or any application to a water court which has been duly filed prior to the coming into force of this Act shall be continued under the provisions of the repealed Act until all appeal processes have been exhausted or abandoned.

(9) A person, who at the coming into force of this Act, was lawfully diverting, storing, or using water from a watercourse pursuant to a permit or apportionment under the repealed Act, or under the provisions of the Mining Act, No 5, 1958, or pursuant to the exercise of a legal right, may continue to divert, store or use such water provided the person makes application to the Board in the proper form for a permit under this Act to divert, store, or use the same flow rate subject to an annual volume as may be determined by the Board within two years of this Act coming into force, or within such longer period as the Minister may, by notice in the Gazette, allow.

(10) Upon receipt of an application in the proper form, the Board shall within one hundred and twenty days and on payment of the prescribed fee, if any, issue a permit or permits under this Act authorising the applicant to divert, store, or use the same flow rate of water as previously allowed subject to an annual volume as may be determined by the Board.

(11) Such permit or permit may contain such terms and conditions as the Board may deem appropriate under the provisions of this Act including, but without limitation, the requirement that the permit holder installs and maintains measuring devices to record the rate of flow and volume of water diverted or used.

(12) Upon the issue of a permit or permits under this Act all the former rights of the holder to divert, store, or use water from a watercourse shall be merged into the rights granted to a permit holder under the provisions of this Act, and such person shall have no right to divert, store, or use any water from a watercourse except as provided in such permit or permits.

(13) If a person referred to in subsection (9) does not make application to the Board in proper form for a permit under this Act within the time provided in subsection (9), that person shall forthwith cease to have any right to divert, store, or use any water.

(14) The Board appointed under the repealed Act shall continue in office for a period of six months after the enactment of this Act.

Power to make Regulations

94. (1) The Minister, after consultation with the Authority, may make Regulations for purposes of this Act.

(2) Without limiting subsection (1), the regulations may provide for:

(a) the procedure for making applications and giving notice thereof;

(b) the information to be submitted with applications;

(c) requiring applicants to pay administrative fees on the making of applications and prescribing the amount of such fees;

(d) prescribing time periods for the renewal of any permit;

(e) the practice and procedures for hearings by the Board;

(f) the practice and procedures for hearing appeals by the Authority;

(g) requiring applicants or appellants to pay administrative fees for a hearing before the Board or for an appeal to the Authority and prescribing the amount of such fees;

(h) prescribing water quality objectives;

(i) establishing a charge for the use of water;

(j) prescribing procedures for securing closed wells;

(k) delineating different categories of dams and establishing safety criteria for the construction, maintenance and operation of each category;

(l) establishing guidelines for drilling boreholes;

(m) the establishment of Basin Authorities;

(n) prescribing time limits for renewal of permits;

(o) the incorporation and management of irrigation districts and Project Boards;

(p) the setting of fees and prescribing the amount of fees to be paid by the users of government works to contribute to the capital, operation and maintenance costs of such works.

Repeal

95. The Water Act, 1967 is repealed.