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 IV WATER APPORTIONMENT BOARD

Establishment of the Water Apportionment Board

20. (1) There is hereby established a Board to be known as the Water Apportionment Board.

(2) The Board shall dissolve soon after the last of the five basin authorities become established in terms of Section 33.

Constitution of the Board

21. (1) The Board shall consist of nine members, who shall be appointed by the Minister in accordance with subsections (2), (3) and (4).

(2) Four members shall be in the employment of the Government and be senior officers in the Ministry of Agriculture and Cooperatives, Swaziland Environment Authority, Ministry of Health and Social Welfare and Ministry of Natural Resources and Energy.

(3) Three members shall be persons who are not in the employment of the Government and will be nominated by each of the following agencies:

(a) Swaziland Chamber of Commerce;

(b) Swaziland Sugar Association or Swaziland Citrus Board;

(c) Swaziland Water Services Corporation.

(4) There shall be two member of the Board representing Swazi Nation Land farmers and small growers on Title Deed Land.

(5) The members shall be appointed for a single renewable period of three years on such terms and conditions as the Minister may determine.

(6) The Minister shall appoint as an alternate to a member a person with similar affiliation as that member.

(7) An alternate member shall be entitled to attend any meeting of the Board but shall not be entitled to vote unless the member for whom the alternate is appointed is absent.

(8) If a member or alternate is to be appointed from a list referred to in sub-Sections (3) and (4), the Minister shall by notice in writing invite the organization or organizations concerned to recommend the name of the person to be appointed to the Board within a specified period.

(9) If the recommendations required under subsection (8) are not lodged with the Minister within the period stated in the Minister's notice inviting such recommendations, the Minister may appoint such person or persons as the Minister considers suitable for the appointment or appointments from the appropriate organization (s) referred to in subsection (3) and (4).

Chairperson and vice chairperson

22. The Minister shall designate one of the members as chairperson and another member as vice chairperson of the Board and if the chairperson or vice chairperson is absent or unable to perform the functions of chairperson or vice chairperson, the member shall designate one member to act as chairperson.

Disqualifications, termination of membership and filling of vacancies

23. (1) A person shall not be appointed to hold office as a member or an alternate member of the Board if that person is :-

(a) is an unrehabilitated insolvent; or

(b) has been convicted of an offense and sentenced to imprisonment without the option of a fine; or

(c) is of unsound mind.

(2) After consultation with the relevant organisation the Minister may remove from office any member of the Board which he appointed under Section 21 if that member:

(a) has failed to comply with a condition of the appointment;

(b) in the opinion of the Minister, has been guilty of improper conduct or has habitually neglected the duties as a member of the Board; or

(c) has been absent from three consecutive meetings of the Board and did not provide written notice giving good reasons for being absent.

(3) If any member of the Board ceases to hold office, the Minister shall, with due regard to Section 21, appoint a person to fill the vacancy on the Board.

(4) The alternate to a member who has ceased to be a member shall continue to have the authority and rights of an alternate until the appointment as an alternate expires or is terminated.

Meetings of the Board

24. (1) Meetings of the Board shall, subject to subsection (2), be held at such times and places as may be determined by the Board or, if at the close of any meeting the Board has not determined the time and place for its next meeting, the chairperson of the Board shall determine that time and place.

(2) The chairperson of the Board shall, when directed thereto by the Authority, or on the written demand of three members of the Board, call a special meeting of the Board to be held at a time and place determined by the Authority or by the three members of the Board as the case may be.

(3) Members of the Board and their alternates in making decisions shall exercise their discretion independently and not as agents of the Department or organization which they represent.

Quorum, decision and Chairperson's casting vote

25. (1) Six members of the Board shall form a quorum for any meeting of the Board.

(2) The chairperson of the Board shall preside at all meetings of the Board.

(3) The decision of the majority of the members of the Board present at any meeting shall constitute a decision of the Board, and in the event of an equality of votes in regard to any matter, the person presiding at the meeting in question shall have a casting vote in addition to the person's deliberative vote.

(4) A decision taken by or act done under the authority of the Board shall not be invalid by reason only of an interim vacancy on the Board or of the fact that a person who is disqualified from being a member of the Board, or with respect to whose appointment the provisions of this Act had not been observed, sat or acted as a member at the time when the decision was taken or the act was performed or authorized, if the decision was taken or the act performed or authorized by the requisite majority of the members of the Board present at the time who were entitled to sit and act as members.

(5) Where a member has a vested interest in a matter being considered by the Board, such that it would constitute a conflict of interest, that member shall declare the interest and not be part of the deliberation of the Board on that matter, as the Board may determine.

Committees of the Board

26. (1) The Board may appoint advisory committees to assist it in the performance of its functions and the carrying out of its duties and the persons to be appointed by the Board as members of any such committee may include persons other than members of the Board.

(2) There shall be payable to a member of a committee of the Board, other than a member of the Board or a person who is in the full-time employment of the Government, such remuneration or allowances, while engaged in the carrying out of any duties as a member of the committee, as the Minister may, in consultation with the Minister of Finance, determine.

Administrative and other work of the Board

27. (1) The Secretariat established under Section 18 shall support the work of the Board.

(2) If the Secretariat lacks skill in a certain area, the Board may secure that skill in or out of Government for as long as it may be necessary.

Powers of the Board

28. (1) The Board shall have all the powers necessary or which reasonably appear to the Board to be necessary to achieve its objects or to perform its duties.

(2) Without limiting the powers of the Board set out in subsection (1) the Board shall have the power -

(a) to consider, amend, grant or reject an application for a permit or an effluent control permit;

(b) to issue a permit or an effluent control permit containing such terms and conditions as it deems appropriate;

(c) to issue well drilling and groundwater abstraction permit containing such terms and conditions as it deems appropriate;

(d) subject to the provisions of this Act, to amend or cancel any permit, an effluent control permit or well drilling permit or a groundwater abstraction permit;

(e) to ensure that inspections, inquiries and tests are made to see if any breach of the terms or conditions of a permit, an effluent control permit or of this Act is being or has been committed;

(f) to take such steps as may be appropriate to enforce the terms and conditions of a permit, an effluent control permit, a well drilling permit or a groundwater abstraction permit;

(g) to ensure that devices in the field are properly constructed, operated and maintained;

(h) to ensure that dams are constructed, operated and maintained safely and recommend to the Authority safety guidelines appropriate for various types of dams;

(i) to inspect any works to ensure that they are constructed, operated or maintained in a safe condition and without undue wastage of water;

(j) to liaise with the Swaziland Environment Authority (SEA) for the setting of periodic review of effluent standards;

(k) to issue instructions to the holder of any permit or effluent control permit or owner or operator of any works to put the works into a safe condition at the expense of the permit holder or owner or operator, and if such instructions are not obeyed promptly, to have the work done by others and to recover the costs in any court of competent jurisdiction;

(l) to delegate by written authority to any person or persons any power which the Board may have under the provision of this Act as set out in such written authority;

(m) to delegate to any association of permit holders, whether legally incorporated or not, the authority to distribute the total permitted quantity of water among its members as it may decide and to exercise such powers of the Board related to the enforcement of permits or of the provisions of this Act within the area of the association's control as the Board may in writing provide;

(n) to prepare a budget and submit it to the Authority for approval and forwarding to the Minister;

(o) to pass bylaws to provide for its own procedures for the performance of its own work and its own administration.

Establishment and keeping of registers

29. The Board shall establish and keep, in the prescribed form, registers of all permits and temporary permits issued, varied, withdrawn or canceled by it under this Act or the repealed Act.

Inquiries by the Board and hearing of applications for servitudes

30. (1) The Board may, in accordance with this Section, conduct an inquiry into any matter falling within the scope of its functions, powers and duties and for that purpose may, by registered letter signed by its chairperson or acting chairperson, summon any person to give evidence at the inquiry or to produce any book, document or thing which may, in the opinion of the Board, be relevant to the subject matter of the inquiry.

(2) The Board may call and examine any person present at the inquiry, whether or not that person has been summoned to attend under subsection (1), and may inspect and retain for a reasonable period any book, document or thing the production of which was required under subsection (1):

(a) Provided that, in connection with the examination of any such person or the production of any such book, document or thing, the law relating to privilege as applicable to a person subpoenaed to give evidence or to produce any book, document or thing before a court of law, shall apply.

(3) Whenever the Board deems it necessary to do so, it may direct any person to give evidence at any such inquiry on oath or affirmation and the member of the Board presiding at such inquiry may adMinister the oath to, or accept an affirmation from, such person.

(4) Any person who has been summoned to give evidence at such inquiry shall be entitled to receive as witness fees and expenses, an amount equal to the amount which would have been received as witness fees and expenses if summoned to attend at a criminal trial in the High Court.

(5) A person shall be guilty of an offense if:

(a) having been summoned to give evidence at an inquiry under subsection (1), he fails to attend at the time and place specified in the summons, or fails to remain in attendance until the conclusion of the inquiry, or until excused from further attendance by the member of the Board presiding at the inquiry, or fails to produce any book, document or thing in that person's possession or custody or under the person's control, which that person has been summoned to produce, without having sufficient cause, or

(b) having been summoned under subsection (1), or called under subsection (2), the person refuses to be sworn or to make affirmation as a witness after directed by the Board to do so; or

(c) Without sufficient cause, he refuses to give evidence or refuses or fails to answer fully and satisfactorily to the best of that person's knowledge and belief any questions lawfully asked.

(6) If requested to do so by any witness or any other person and on good cause shown to the satisfaction of the Board, the Board shall hear the witness's evidence in camera.

(7) If any person who is entitled to claim any servitude in terms of Section 53 is unable to reach an agreement with the person from whom the servitude is claimed as to the terms of the servitude or the compensation, if any, to be paid in respect thereof, either of the parties to the dispute may in writing submit the matter in dispute to the Board for decision and the Board shall, after making such investigation and inquiry as to it may appear necessary, make such order in regard to the matter in question as it may deem just, and any order so made shall be binding upon the said parties.

(8) In determining any matter mentioned in subsection (7), the Board may, upon the application of any of the parties to the said dispute, make such order as to costs as it may deem just in accordance with a scale of costs under the provisions of Section 18 of the Acquisition of Property Act, 1961.

(9) Any order made by the Board under subsection (7) shall, if the Board so directs, be registered by the Registrar of Deeds against the title deed of any land to which the order refers and shall be recorded in the appropriate registers in the Deeds Office, and the proprietor of any such land shall produce the title deeds for the purpose.

(10) A person who, during any sitting of the Board willfully insults a member thereof or who is attending at such sitting, or willfully obstructs or interferes with any such member in the execution of the duties required to be performed in terms of the said Section, or willfully interrupts the proceedings of the Board or otherwise misbehaves in the place where the Board is sitting, shall be guilty of an offense and liable on conviction to the penalties mentioned in Section 90.

Annual Reports

31. The Board shall, within four months after the end of each financial year, furnish to the Authority a report on the activities of the Board during that financial year and upon any other matter with which the Authority may require the Board to deal.

Appeals from decisions of the Board or Authority

32. (1) Any person aggrieved by a decision of the Board may appeal to the High Court on one or more of the following grounds:

(a) that the person was improperly refused the right to appear before the Board as a party;

(b) that the Board exceeded its jurisdiction;

(c) that the Board failed to exercise a jurisdiction which it was required to exercise;

(d) that the Board found that no compensation was payable;

(e) that the amount or value of compensation arrived at by the Board is wrong;

(f) that there was an error in law appearing on the face of the decision itself.

(2) The rules of the High Court shall apply to such an appeal.

(3) A party aggrieved by a decision of the Board may also appeal to the Authority.

(4) An appeal against a decision of the Authority may be made to the High Court on a point of law only.

(5) Any appeal from a decision of the Board shall be taken by instituting proceedings in the High Court or by filing a notice of appeal with the Authority within three months from the date the decision appealed against is made, unless the High Court or the Authority, as the case may be, extends the time on good cause shown.

River Basin Authorities

33. (1) The Minister shall within five years of coming into force of this Act, establish upon the recommendation of the Authority and subject to subsection (7), five River Basin Authorities by notice in the Gazette.

(2) River Basin Authorities shall be established to implement a management plan under the Master Water Resources Plan dealing with a specific geographical basin area.

(3) The notice shall state the name of the River Basin Authority and shall define its objects, powers and areas within which it shall operate.

(4) A River Basin Authority shall be a body corporate capable of suing and being sued in its own name and shall have such other powers as a board corporate may have.

(5) The composition of a River Basin Authority shall be determined by regulation, but subject to the following:

(a) a River Basin Authority shall consist of among others representatives of all the relevant water sectors in the basin in question;

(b) water sector representative for purposes of the composition of the River Basin Authority shall be elected by interested or affected stakeholders;

(c) election of representatives will occur by nomination within sixty days after notice in the Gazette and two newspapers in circulation in the affected areas;

(d) the Authority shall appoint one of the nominated candidates of each water sector to become a member of the River Basin Authority;

(e) in the event of the failure of any of the water sectors to nominate candidates, the Minister may appoint representatives for these water sector

(f) for the purposes of this Section, water sectors are classified as belonging to one of the following user sectors: domestic, agriculture, forestry, conservation and mining/industry.

(6) The objects of a River Basin Authority are to conform to and to implement the Water Resources Master Plan, and to advise the Authority on basin issues.

(7) The powers, duties and functions of River Basin Authorities shall be laid down by the Minister, and shall include the following:

(a) to keep a data base of basin information, including water availability and water demand data, and to monitor and keep record of changes in water conditions in the basin;

(b) to issue, amend and renew or suspend water permits;

(c) to impose water restrictions on all water users in times of water shortage;

(d) to investigate the need for water resources development and management and to advise the authority on the need to appoint Project Boards;

(e) to investigate the need for inter-basin transfers, to negotiate it with other basin authorities, and to advise the Authority in respect thereof;

(f) to arbitrate user disputes;

(g) to monitor and control water quality and enforce effluent regulations;

(h) subject to the approval of the Authority, to levy and collect rates and charge to defray part or all costs of the River Basin Authority;

(i) have authority over Irrigation Districts, Project Boards and User Associations.

(8) The powers and objects may be altered, expanded or reduced from time to time by the Minister on the recommendation of the Authority by notice in the Gazette.

(9) All powers vested in the Board shall automatically be transferred to each River Basin Authority as soon as that River Basin Authority is established.