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 V PERMIT FOR THE USE OF WATER

The right in water

34. (1) All water found naturally in Swaziland is hereby declared a national resource.

(2) There shall be no private right of property in any water found naturally in Swaziland.

(3) A right to divert, store, or use water shall not be acquired by prescription.

(4) It shall not be necessary for any person or community to obtain a permit for the use of water for primary purposes.

Application for a permit

35. (1) An application for a permit shall be made to the Board.

(2) Every person who applies for a permit under this Act or to renew or amend a permit shall comply with the regulations with respect to filing the application, giving notice of such application and paying the prescribed application fee, if any and shall furnish such information, plans and specifications as the Board may require.

(3) An application shall clearly indicate the intended use of water to be made under the permit.

(4) The Board shall give prompt notice to the Authority on every application received.

(5) The Board may issue, renew or amend a permit without the consent of the Authority unless such permit conform to the Water Resources Master Plan, in which case the consent of the Authority shall be necessary.

Objections to application

36. (1) Any person who considers that rights of that person would be adversely affected by the granting of the permit applied for, may, within thirty days of receiving notice of the application, or such longer period as the regulations may provide, file an objection in writing with the Board, giving full reasons for the objection.

(2) On receipt of an objection referred to in subsection (1), the Board shall consider the objection, hear the objector and its decision shall be final.

Powers of the Board with respect to an application

37. (1) The Board may, with respect to any application for a permit -

(a) refuse the application;

(b) amend the application in any respect;

(c) grant the application in whole or in part;

(d) require additional information, plans or specifications; or

(e) issue to the applicant one or more permits on such terms and conditions as the Board considers proper.

(2) With respect to any application for the renewal of a permit, such renewal shall not be refused.

(3) Without limiting the Board's discretion, a permit may contain -

(a) limitations as to the time or hours of the day when water may be diverted, stored, or used;

(b) authority to divert, store, or use different quantities of water at different times of the year; or

(c) the specifications as to the records to be maintained by the permit holder.

(4) The permit shall be made appurtenant to specifically defined land, or to a specific industrial undertaking, or to a specific local authority or person which will distribute the water generally to members of the public.

(5) A permit to divert or store water shall specify the point at which the water is to be diverted from the watercourse or the place of storage.

(6) A permit to divert or use water for agricultural purpose shall specify the methods to be used to collect surplus or used water and the point at which surplus or used water is to be returned to the watercourse.

(7) A permit to divert or use water for an industrial undertaking shall specify the volume which may be consumed in the processes of the undertaking and the point at which the water shall be returned to the watercourse.

(8) A permit to divert or use water for a local authority shall specify the volume to be consumed and the point at which the water shall be returned to the watercourse.

(9) A permit to divert or use water for agricultural or industrial purposes or for a local authority shall require the permit holder to install and maintain adequate devices to measure and record the volume of water diverted or used.

(10) Subject to Section 93 (9) a permit shall be renewed every five years or such longer period as may be prescribed by regulation.

Emergencies

38. (1) In an emergency whether natural or otherwise, the Board or its authorized delegate may by notice, suspend a permit or a temporary permit in whole or in part and may give instructions to the holder of the permit or temporary permit as to the diversion, storage or use of water as the Board or its delegate may deem appropriate.

(2) The notice and instruction referred to in subsection (1) shall be given by such means as may seem to the Board or its authorized delegate to be appropriate, but if not given in writing, they shall be confirmed in writing as soon as may be reasonably practicable.

Drought Conditions

39. (1) If at any time it is found that due to climatic conditions there is insufficient water available in any watercourse to satisfy all permit holders according to the quantities permitted to them, the Board shall by notice served by registered mail on all permit holders on that watercourse reduce proportionately the amount of water allowed to the permit holder.

(2) A permit holder of water for domestic consumption or stock watering need not be required to reduce the amount of water allowed in the permit.

(3) Notwithstanding subsection (2), a permit holder for water used for domestic consumption or stock watering may be required to reduce the amount allowed in the permit in the event of more serious drought.

Change in flows

40. (1) If it is found that by reason of changes of a long term nature the natural flow in a watercourse available to all users has dropped so that more water is permitted to be diverted, stored, or used than is available in the watercourse, the Board shall hold a public hearing into the matter and thereafter may amend any or all permits to divert, store, or use water from that watercourse in an equitable and fair manner as the Board may deem appropriate.

(2) A compensation shall not be payable in respect of any reduction ordered by the Board pursuant to Sections 38, 39 and 40.

Cancellation

41. (1) Every permit and all rights under it are subject to cancellation or variation in whole or in part by the Board, if -

(a) the permit holder has applied for cancellation;

(b) the permit holder has failed for three successive years to make use of the water for the purpose and in the manner authorised by the permit;

(c) the permit holder has failed to complete the construction of the works authorised by the permit within the time specified by the permit;

(d) the permit holder has failed for two successive years to pay any fees due to the Board with respect to the permit;

(e) the permit holder has for six months failed to pay any water bailiffs fees payable;

(f) the permit holder has failed to comply with this Act, the regulations, or any term or condition of the permit, or of an effluent permit, or any term or condition of an effluent permit issued in conjunction with the permit;

(g) the permit holder has failed to comply with a lawful order of the Board or of its duly authorised delegate; or

(g) the permit holder made a material misstatement in the application for a permit or in information provided to the Board with respect to such application.

(h) it is in the public interest to do so.

(2) If the Board proposes to cancel a permit in whole or in part on any ground specified in subsection (1), it shall give notice by registered mail to the permit holder and to the proprietor of any lands or undertaking to which the permit is appurtenant, and shall cause a notice of its intention to be published in a local newspaper once a week for three consecutive weeks.

(3) If the Board, within four weeks of the mailing of the notice or the last publication of the notice in a local newspaper, has received an objection to the proposed cancellation from a person claiming to be interested in the permit, the Board shall hold a hearing within eight weeks, and shall then decide whether to cancel the permit in whole or in part or to allow the permit to remain in effect and, if so, subject to such amended or additional items and conditions as the Board may consider proper.

Compensation in the event of cancellation

42. (1) There shall be no compensation paid in the event of a permit cancelled in terms of Section 41 (1) (a) to (h).

(2) If the Board decides in terms of Section 41 (1) (i) that the permit should be cancelled in whole or in part in the public interest it shall also decide whether compensation will be paid and the amount of compensation payable for such cancellation and the party or parties, including the Government, who should pay such compensation and the party or parties to whom such compensation should be paid.

(3) In deciding the amount of compensation payable the Board shall apply mutatis mutandis the provisions of Section 15 of the Acquisition of Property Act, 1961.

(4) Compensation shall be paid on cancellation or not later than three months from the date of cancellation

Transfer of permit

43. (1) Every permit which is made appurtenant to land shall pass with the proprietorship of that land.

(2) Every permit which is made appurtenant to an industrial undertaking shall, subject to the provisions of Section 63 and Section 69, pass with the proprietorship of the undertaking.

(3) The Board upon receipt of evidence of the transfer of proprietorship and upon payment of the prescribed fee, if any, apportion the rights under the permit proportionately among the new parcels of land and shall issue new permits appurtenant to the new parcels of land and shall thereupon cancel the prior permit.

(4) If land to which a permit is appurtenant is subdivided, the Board shall upon the request for the sub-division, and on payment of the prescribed fee, if any, apportion the rights under the permit among the new parcels of land and shall issue new permits appurtenant to the new parcels of land and shall thereupon cancel the prior permit.

Duties of the permit holder

44. The holder of a permit shall at all times -

(a) divert, store, or use the water strictly in conformity with this Act and with the terms and conditions of the permit;

(b) avoid, as far as may be reasonable, any inefficiency or waste in the use of the water;

(c) keep such records as may be called for and permit the Board or its authorized delegate to inspect and make copies of such records at all reasonable times;

(d) maintain all works in a safe condition and carry out all orders of the Board or its authorized delegate with respect to the repair of works within the time specified in such order or if no time is specified within a reasonable time; and

(e) renew the permit on time.

(f) surrender the permit as soon as it is no longer wanted; and

(g) comply with all lawful orders of the Board or Authority.

Watercourse used for Swazi law and custom

45. Notwithstanding this Act or of a permit or temporary permit issued by virtue of this Act, no works shall be constructed and no water shall be diverted, stored, or used from or in any watercourse or portion thereof which is sacred or which has special significance according to Swazi law and custom and has been so declared and published in the Gazette by any lawful authority.