1. Presentation to the Portfolio Committee: Water & Environmental Affairs Presentation by Mbangiseni Nepfumbada Acting DDG: P&R 11 August 2010 1 Briefing on Regulation, Compliance Monitoring and Enforcement in the water sector

2. PRESENTATION OUTLINE Background and overview of the regulation function in DWA Current functions of regulations Purpose & setting up of CME unit Transgressions & interventions – Statistics, legal instruments, illegal use Strategic focus, challenges and solutions 2

3. 3 BACKGROUND (1) Regulation is a key function of the Department of Water Affairs (DWA) involving regulating all aspects of the water business It has been identified as a risk areas in respect of implementation of the National Water Policy and legislation Requires dedicated attention – thus identified as critical and stand alone Programme since 2009 - implemented 2010

4. 4 BACKGROUND (2) Regulation as a programme covers the following key areas of operation: – Economic & Social Regulation – economic and social implications of water, esp. iro institutions under DWA – Water Use Authorisation - authorisation through use of regulatory instruments like licensing & allocation reform)

5. 5 BACKGROUND (3) – Compliance Monitoring - coordination and monitoring of compliance to standards, licence conditions & regulations across the full water value chain (includes, water resources, dam safety, water hazards and water services) – Compliance Enforcement - ensures that appropriate legal or corrective action is taken against all unlawful water use and other regulatory transgressions or requirements.

6. 6 BACKGROUND (4) The remaining functional areas as currently proposed are to form part of Policy & Planning, representing Water Management Programme The establishment of the regulatory function (CD structure & programme) was effected on 01 March 2010 through consolidating a number of functions into one unit. Process is underway to develop a fully fledged branch Regulation

7. 7 REGULATION OVERVIEW (1) REGULATION OVERVIEW (1) REGULATION Compliance Conformity Penalise / Enforce

8. 8 REGULATION OVERVIEW (2) In a developing state it is difficult to time regulation and compliance enforcement. But a phased process can be followed over time Dev Policy & legislation Oversee / support / correct Regulate / Ensure compliance Time frames / Conditions Develop regulations

9. 9 CURRENT REGULATION FUNCTIONS Current functions covered under the Regulation function are – water allocation; – resource protection and waste; – Abstraction and In-stream use, – water services regulation and – compliance monitoring and enforcement. This presentation focuses on progress with setting up a compliance monitoring and enforcement unit and efforts to curb water transgressions

10. 10 PURPOSE OF THE CME UNIT To ensure the protection of all water resources in the country To ensure compliance with water legislation (National Water Act, Water Services Act and related legislative provisions) To ensure enforcement where non- compliance is identified Enforcement is not an end, but a means to an end. It can be used as a DETERRENT

11. PROGRESS WITH SETTING UP THE CME UNIT The CME unit has been relocated to the new Programme Regulation It is currently comprised of 20 staff with – 30% located in the National Office focusing on Enforcement and – 70% to be deployed in the Regional Offices across the country focusing on Compliance Monitoring 11

12. CHALLENGES IN SETTING UP THE CME UNIT Aligning regional and national functions as well as role clarification Requisite capability requirements Change management – especially moving from fragmented regulatory functions to consolidation 12

13. INTERVENTIONS Refinement of Regulatory functions from National to Regional Offices (including redeployment & change management) Focussed training and competence development for effective enforcement Collaboration with Departments like Environment, Justice and SAPS 13

14. INTERVENTIONS (2) Additional budget request as part of strengthening the Regulation Programme Focus on key areas of improvement: – quality of information and reporting – Effectiveness and efficiency in dealing with cases and follow through 14

15. STATISTICS ON TRANSGRESSION AND INTERVENTIONS 15

16. Statistics on Legal Instruments per Sector (June 2010) LEGAL INSTRUMENT SECTOR TOTAL MinesAgric.WSAIndustryOther (SO) Pre-directives3212786109264 Directives1648238297 Water Tribunal Cases -61--7 Criminal Cases31361-23 16

17. Stats on Pre-directives, Directives & Cases per Province PROVINCEPRE-DIRECTIVESDIRECTIVESCRIMINAL CASES Limpopo580 Mpumalanga1312314 Gauteng33262 North West8101 Northern Cape21100 Western Cape600 Eastern Cape1731 Free State12134 KwaZulu Natal3141 TOTAL2649723 17

18. TRANSGRESSIONS AND INTERVENTIONS 18

19. 19 ILLEGAL WATER USE: IRRIGATION (1) It is estimated that 180 million cubic metres of water is used illegally in the Upper Vaal catchment per year. These farmers are using water that is supplied through expensive water transfer infrastructure built and paid for by the domestic and industrial users of the Vaal River system. A process has started to rectify this situation but it is costly, complex and time consuming.

20. 20 ILLEGAL WATER USE: IRRIGATION (2) Validation and verification completed (44% of users). It’s only after verification process on a property has been completed (section 35 NWA) that a final decision can be made on the legality of the water use. No legal action or any enforcement action can be taken against a property owner before the verification process has been completed on that property.

21. 21 ACTIONS AGAINST MINES (1) Many mines currently operating without licenses In many cases of existing mines- Regulation is restricted where mines are waiting for licenses and therefore success of project Letsema is critical. Stronger cooperation needed with Department of Mineral Resources (DMR)

22. 22 ACTIONS AGAINST MINES (2) Typical case is where issuing of mining license is on condition there is a water use license Tough stance by CME includes instituting legal action against mines. Problems persist where mines are derelict, bankrupt and abandoned

23. 23 ENFORCEMENT ON ORGANS OF STATE (1) Enforcement protocol compiled and approved. Follows the Promotion of Administrative Justice Act as well as Intergovernmental Relations Framework Act Firstly look at suggestions and support development of action plans such as Blue Drop and Green Drop process

24. 24 ENFORCEMENT ON ORGANS OF STATE (2) If commitments and undertakings by municipalities are not honoured DWA moves to next step Issuance of “Notice of intention to issue a Directive”, also referred to as a Pre-Directives; Issuance of Directives in terms of specific sections of the NWA No response or action to rectify after a directive was issued then.

25. 25 ENFORCEMENT ON ORGANS OF STATE (3) Criminal Prosecution : – Where the State Organ has willfully failed to co-operate without a valid reason, failed to implement the agreed solution then the State Organ is held criminally liable; – Legislation including criminal liability of the state  Section 156 of the NWA: “This Act binds all organs of state”  The said section does not provide any exclusions in discharging this mandate and therefore all the State Organs, like any other user of the water resources, are subject to the all the provisions of the NWA

26. STRATEGIC FOCUS, CHALLENGES AND SOLUTIONS 26

27. 27 STRATEGIC FOCUS AREAS FOR REGULATION Further improve drinking water quality Eradication of Unlawful Water use in the Vaal River system (irrigation) Waste Water Treatment Works compliance Compliance by Industry and Mines Implementation of the Enforcement Protocol against Organs of State Quality of directives reporting and follow-up Recruit and Build capacity of Staff.

28. 28 CHALLENGES AND SOLUTIONS (1) Licences backlog - success of project Letsema will help Legal process slow-dedicated courts Capacity in unit- Staff recruitment and training Directive follow ups- better investigations

29. 29 CHALLENGES AND SOLUTIONS (2) Decrease of illegal irrigation depends on verification and validation process- complex- service provider on board and special project started Legal actions not final solution-weigh other options and strategies to solve the problem

30. 30 THANK YOU