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GOVERNANCE INSTITUTIONS AND PARTICIPATION IN THE ORANGE SENQU BASIN

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					GOVERNANCE, INSTITUTIONS AND
PARTICIPATION IN THE ORANGE-
SENQU BASIN




Ecologic – Institute for International and European Environmental Policy
Pfalzburger Str. 43/44, 10717 Berlin, Germany
Phone: +49 30 86880-0, Fax: +49 30 86880-100




NEWATER DELIVERABLE 1.2.1
Report of the NeWater project -
New Approaches to Adaptive Water Management under Uncertainty
www.newater.info
Title                            Governance, Institutions and Participation
                                 Case Study: Orange-Senqu Basin – South Africa and Lesotho
Purpose                          Working paper provides background information on
                                 governance, institutions and participation in the South Africa
                                 and Lesotho.
Filename                         del121_OrangeSenqu_Ecologic_050615.doc
Authors                          Nicole Kranz, Eduard Interwies, Antje Vorwerk, Anneke von
                                 Raggamby.
Document history                 Draft 15 June 2005
Current version                  Final
Changes to previous version      Document format adjusted to NeWater report template; minor
                                 content changes
Date                             October 2005
Status                           Final
Target readership                NeWater research community
General readership               External experts
Correct reference                Kranz, N., E. Interwies, A. Vorwerk, A. von Raggamby.
                                 Governance, Institutions and Participation in the Orange-
                                 Senqu Basin. Report to NeWater project, Berlin, 2005.




Nicole Kranz, Eduard Interwies, Antje Vorwerk and A. von Raggamby
Ecologic – Institute for International and European Environmental Policy

June 2005

Prepared under contract from the European Commission



Contract no 511179 (GOCE)
Integrated Project in
PRIORITY 6.3 Global Change and Ecosystems
in the 6th EU framework programme



Deliverable title:            Governance, Institutions and Participation in the Orange-Senqu
                              Basin
Deliverable no. :             D 1.2.1
Due date of deliverable:      Month 7
Actual submission date:       15 June 2005
Start of the project:         01.01.2005
Duration:                     4 years
Preamble

The project has assembled a group of enthusiastic people with different scientific and practical
background. In and of itself, the project presents a major challenge and a practical lesson in social
learning in order to promote and guide the research process to profit from the diversity of knowledge
and experiences. We welcome feedback and suggestions from anyone reading this report since it
defines the basic structure of what we intend to do in the project.
All teams involved are grateful for the support of the European Commission in providing funds for
this research and to the national organisations contributing to the project.



                                                                                 Claudia Pahl-Wostl

                                                                                Coordinator of WB1
                                                                                   NeWater project
                                                                                       August 2005




                                                                                                    i
ii
Executive Summary
Overview of Project
This report is part of the NeWater project, and provides a review on the governance, institutions, and
public participation in the water resources management sector in the Orange-Senqu River basin,
located in southern Africa. This transboundary basin, shared between four countries, is one of six
international river basins that serve as case studies for NeWater. The project aims to provide new
knowledge on managing the transition from currently prevailing regimes of water resources
management to more adaptive regimes, which will be more suitable for operation under uncertainty.
The project has started in January 2005 and will run until December 2008.

Report Summary
This report aims to provide an overview of national governance, institutions and public participation
regarding water resources management in the Orange-Senqu River basin. The countries within which
this river basin lies are Botswana, Namibia, Lesotho and South Africa. For this report, only Lesotho
and South Africa have been investigated1. The information coverage was highest for South Africa,
also the country with the largest proportion of basin area within its borders (approx. 60%).
The profound political changes South Africa has undergone in the last 15 years have been reflected in
a complete restructuring of the country’s legislation and policy. These changes, as well as being based
on a different set of principles and ideologies, incorporated international trends and best-practice
knowledge regarding water management. Water is now no longer conceived of as a property right,
distributed on the basis of riparian property, but has become a common good, subject to national
control, and perceived as a right to fulfil environmental and human needs. South Africa’s water policy
also outlines a benefit-sharing approach for international water resources. The major objectives for
water management can be summarised as equitable access to water, achieving sustainable use of water
as well as an efficient and effective water use for optimum social and economic benefit (Chapter 2).
Regarding the means of implementation of these new principles, South Africa has made good use of
the modified theoretical understanding of water management. Integrated Water Resources
Management (IWRM) is explicitly incorporated in government documents such as the National Water
Resource Strategy. Land-use management, for instance, is seen as an instrument for achieving IWRM.
Another aspect in which South Africa is following current best-practice concepts is in its change of its
politics of subsidising large-scale infrastructure for a cost-recovery approach (Chapter 3).
The central, top-down management system of water resources previously in place was given up in
favour of a decentralised approach, in which provincial and local governments are spheres of
government in their own right and not functions of the national government. Thus, water resources
management is brought to the local level, with the establishment of local catchment management
agencies (CMAs) and water users associations (WUAs) currently under way. Public participation is
recognised as a cornerstone of the resource’s management, and considerable effort has been invested
in its development, for instance through the elaboration of guidelines for public participation.
In terms of policy formation as well as institutional reform, South Africa can definitely be considered
a leading state, but these structural changes are currently still under way, taking a considerable amount
of time, and have to face a series of problems on the ground (Chapters 2 to 4).
Lesotho, on the other hand, is currently beginning a revision process of its environmental legislation.
A National Environmental Policy and a National Environment Act have been issued in the last years,
which explicitly incorporate elements such as public participation, and other water-related legislation
is about to follow suit. But the implementation of environmental policy and law in Lesotho present
clear deficits, due in part to a lack of resources, and the achievement of policy objectives are still a
long way off (Chapters 2 to 4).

1
    As Botswana actually does not contribute surface runoff to the Orange, though, much of the analysis would
    not have been of relevance.

                                                                                                          iii
Table of contents

Preamble................................................................................................................................................... i
Executive Summary ............................................................................................................................... iii
1       Introduction .................................................................................................................................... 1
    1.1 Orange-Senqu River basin.......................................................................................................... 1
    1.2 Large infrastructure projects ...................................................................................................... 2
    1.3 Key facts on the countries .......................................................................................................... 4
2       Government (organisation and strategies) ...................................................................................... 6
    2.1 Water policy ............................................................................................................................... 6
    2.2 National water legislation and its relation to other relevant regulations .................................... 8
    2.3 Government actors responsible for water management ........................................................... 10
    2.4 Water policy implementation ................................................................................................... 12
    2.5 Scale dimensions of government.............................................................................................. 14
    2.6 Excursus: Lesotho – Government ............................................................................................ 17
3       Property rights/markets/prices ...................................................................................................... 21
    3.1 Ownership of water and rivers/ water use rights ...................................................................... 21
    3.2 Cost recovery............................................................................................................................ 22
    3.3 Excursus: Lesotho – Property and Rights ................................................................................ 23
4       Stakeholder/citizen participation .................................................................................................. 24
    4.1 Constitutional settings .............................................................................................................. 24
    4.2 Water management and the public in the past.......................................................................... 24
    4.3 Provisions for public participation in water management ........................................................ 25
    4.4 Practical implementation of public participation in water management .................................. 27
    4.5 Main actors in water management in South Africa .................................................................. 28
    4.6 Further outlook......................................................................................................................... 30
    4.7 Networks .................................................................................................................................. 31
    4.8 Excursus: Lesotho - participation............................................................................................. 32
5       Information management.............................................................................................................. 37
    5.1 Current situation....................................................................................................................... 37
    5.2 Future strategy.......................................................................................................................... 37
6       Conclusion .................................................................................................................................... 39
    6.1 Policy Process .......................................................................................................................... 39
    6.2 Outlook..................................................................................................................................... 41
7       List of references .......................................................................................................................... 42




                                                                                                                                                          iv
                                                                                   Introduction


1    Introduction
This report intends to provide an overview of governance, institutions and participation in
the water sector in two countries of the Orange-Senqu River basin – South Africa and
Lesotho – as contribution to work package 1.2. of the NeWater project.
NeWater research is aimed at identifying new approaches to more adaptive strategies in
water resource management. In the inception phase, current water management regimes in a
number of selected case study basins are described as a basis for the development of further
research agendas on the transition towards adaptive management schemes.
The Orange basin offers a magnitude of issues to study in this context. South African water
policy, as well as the entire political structure in the country, is presently in a transition
process. Reforms currently underway, in the wake of the establishment of a new democratic
government in 1994, are also reflected in the water sector. Drastic changes are occurring
regarding how access to water is granted, water resources are managed and people are
involved in decision-making concerning water issues. While the process is a fascinating
object of study, this transitory process makes it hard to assess how the new policies will
unfold and what actual impact they will have on the ground. The changes proposed by the
new government strategy are far-reaching and integrate the most innovative concepts of
water resource management developed in international processes over the past years. At the
same time, South Africa is faced with a number of lock-in situations due to large
infrastructure projects in the past.
The Kingdom of Lesotho, as a country entirely located in the Orange-Senqu basin and with
close ties to South Africa on many levels, is also discussed in this report. The decision to
combine both countries in one report was reached due to the following reasons:
•   information on water policy in Lesotho was very scarce and hard to access,
•   Lesotho’s water policy is inextricably linked to South African water resources
    management strategies, due to the shared Orange-Senqu River basin and major
    infrastructure for water transfers between the two countries.
As a consequence, most of the material presented refers to South African water policy.
Where available, insight into policy processes, actors and structures in Lesotho was provided
as well. In many cases information available was related to the governing of the
infrastructure projects.
From this starting point, possible tasks for the NeWater project could be identified:
•   creating a contribution to the building of a stronger knowledge base for the
    understanding of water policy processes in Lesotho,
•   developing tools to assess the transitory process in South African water policy over the
    coming years,
•   discussing the implications of transboundary collaboration in the Orange-Senqu River
    basin for both countries.


1.1 Orange-Senqu River basin

The Orange-Senqu River basin is the largest watershed in Africa south of the Zambezi. More
than half of the approximately one million square kilometres in the catchment area is located
in South Africa, with the remainder lying in Lesotho, Botswana and Namibia. With 60%, the




                                                                                             1
                                                                                 Introduction

largest part of the river basin lies in South Africa. The remainder falls within Botswana
(13%), Namibia (25%) and Lesotho (2%). The latter country is completely covered by the
basin. In the context of the NeWater project South Africa and Lesotho will be the main
subjects of investigation.
The river originates in the Drakensberg range in Lesotho and stretches over 2.100 km
westwards to the South Atlantic. The Orange-Senqu basin is characterised by extremely
variable rainfalls, ranging from 2000 mm per year at the source to 50 mm per year and thus
extremely arid climatic conditions neat its mouth, and high evaporation of 2.000 to 2.500
mm [11].
Main tributaries of the Orange are the Caledon, Kraal and Vaal rivers, further downstream
the Orange receives water from the Hartbees, Molopo and Fish rivers. These rivers usually
fall dry during the several months of the year; so did the Lower Orange during severe
droughts. The Orange does not have extensive floodplains or a significant delta. Only in the
downstream area are there low-lying areas with fertile land which is suitable for irrigation.
In terms of water use, the situation in the basin can be described as follows: irrigation
dominates the water use with 54 %, in contrast to 10 % that goes towards environmental
demands and 2 % provided to urban and industrial use. The remaining 34 % is accounted for
by evaporation and run-off to the ocean through rivers and canals.




Figure1: Orange-Senqu River Basin and riparian states


1.2 Large infrastructure projects

Fundamental to understanding of water management in the Orange-Senqu river basin,
assessing the current transformation in water resource management in South Africa and the
linkages to Lesotho are large scale infrastructure projects implemented in the basin
throughout the last decades. Of special interest in this context is the Orange River
Development Project (ORDP) as well as the Lesotho Highlands Water Project (LHWP).
These projects not only symbolise the formerly prevailing approach towards water
management followed in this region, but also help to understand the underlying policy
processes.




                                                                                           2
                                                                                  Introduction


Orange River Development Project
The ORDP is the culmination of proposals for irrigation projects in the semi-arid climate
conditions in the Orange basin brought forward as early as the 1920s. Reflecting the political
climate at that time the actual planning for the project was issued in the early 1960s. The
development scheme was very ambitious as it sought to bring substantial benefits for South
Africa, the Orange basin and particularly white farmers during the heyday of apartheid. This
was also reflected by the main objectives of the project:
•   irrigation for increased agricultural production,
•   supply of water for municipalities and industry,
•   generation of hydro-electric power,
•   flood prevention,
•   recreational facilities,
•   promotion of further settlements in the area,
•   creation of employment [53].
The proposed measures to reach these goals were to be implemented in six phases and
included the construction of several major dams (completed to date are the Gariep dam and
the Van der Kloof dam), canal systems for water distribution and drainage purposes, water
tunnels connecting catchments with abundant water resources with water scarce-irrigation
areas, as well as various hydropower stations.
At the inception phase, planning for the ORDP was conducted haphazardly necessitating
many changes of the design and the implementation plan, resulting in a four-fold increase of
project cost and eventually changes to the original concept. Outcomes diverged from the
anticipated benefits, positively as regards agricultural productivity and hydropower
generation, negatively in terms of irrigated agriculture and the value of production. While
flood protection goals were broadly met, some unanticipated environmental impacts
occurred. Although distributional deficits occurred and the effects on the national economy
were negligible, the project outcomes were evaluated as positive during assessment in the
1970s and early 1980s [11].
A re-appraisal undertaken between 1988 and 1992 then showed that the potential demand for
water in the Orange basin would far exceed supply by the year 2020, triggering a re-planning
exercise for the ORDP. The Orange River Re-planning Study was undertaken between 1994
and 1998, which also took into consideration the linkage to the LHWP (see below) and
reflected new policy frameworks emerging at that time, opening the way for more
participation in planning processes, a more in-depth financial and economic analysis as well
as a more thorough examination of environmental and social issue in planning.
The most recent focus has been on improving the management of the current infrastructure
and basin-wide management and co-ordination as well as the better integration of
environmental concerns.

Lesotho Highlands Water Project
The Lesotho Highlands Water Project (LHWP) as a massive, multi-dam development
scheme was built for the purpose of diverting water from the Maloti Mountains in Lesotho
and the Senqu river basin to the Vaal river system in the South African Gauteng region. The
LHWP is considered the largest water infrastructure in Africa comprising five proposed
dams, 200 kilometres of tunnels and a 72-megawatt hydropower plant. Of the dams the 180
m Katse dam and the 145 m dam Mohale are completed, further dams are under




                                                                                            3
                                                                                   Introduction

construction. The underlying principle of the project is that water is transferred to South
Africa by means of this infrastructure and that Lesotho in return receives electricity
generated through hydropower.
The project had already been conceived in the late 1950s, the treaty between the South
African apartheid regime and Lesotho’s military regime was signed in 1986 and construction
was taken up in 1989. In 1998, water deliveries according to the proposed plans began.
The LHWP is highly contested and criticised in the developing as well as the developed
world due to the already far-reaching damaging impacts of the project on communities in
Lesotho, the degradation of the natural environment in both countries, corruption in the
context of financing, project implementation and management as well as dubious finance
practices [19].
Social impacts were particularly drastic and affected mainly remote mountain communities
in the Lesotho highlands, which were for once impacted by the massive influx of outsiders,
coming to work for the project and leading to the disruption of traditional village structures.
About 30,000 people lost their homes, farm land or access to communal grazing land. Efforts
to restore livelihood have only been conducted insufficiently.
Environmental impacts include loss of wetlands, less water available, reduction of fisheries
in downstream areas in the wake of the damming. In the upstream areas habitat of
endangered species was reduced significantly.
At the same time there has been mounting evidence that further implementation of the
project would become unnecessary if water planning in South Africa was changed
profoundly, focusing more on demand side management and the promotion of effective
water use rather than technical solutions.


1.3 Key facts on the countries


Lesotho
The Kingdom of Lesotho lies 28.5-30.5° southern latitude and 27.0-29.5° eastern longitude.
Two major grassland types, the highveld and the mountain grassland area, characterise the
Lesothoan biodiversity. The weather in Lesotho is mainly continental and thus moderate,
with occasional snowfalls in the winter and rainy season lasting from October to November.
The country is totally enclosed by the Republic of South Africa, with an territorial area of
30,344 km². The capital of Lesotho is Maseru with 130,000 inhabitants. The population of
the county is about 2.2 million, with 30% living in urban parts. Between 1997 and 2003, the
average population growth rate was an estimated 1.9%. The country is divided into eleven
districts: Berea, Butha-Buthe, Lerive, Mafeteng, Maseru, Mohales, Hook, Mokhotiong,
Qachas Nek, Quthing and Thaba-Tseka.
Lesotho gained independence in 1966. Today, the country is a constitutional monarchy, with
King Letsie III reigning since 1996. A bicameral system, similar to the British system, is
currently in force. In the National Assembly, a total of 120 representatives participate, with
2/3 being voted by majority voting system, and the remaining 1/3 voted through proportional
representation. At the moment, the Lesotho Congress for Democracy party (LCD, social
democratic) is in power.
In 2003, the Lesothoan GDP was 1.1 billion US$, with a real growth rate of 3.3%. The
industrial and service sectors contribute both 42.1% to the GDP (Gross Domestic Product).
Agriculture plays a minor, but still significant role for the economy by contributing 15.7% to
the GDP. The rate of inflation has dropped significantly in the last years: in 2002, it was




                                                                                             4
                                                                                 Introduction

10.5%. Subsequently, it dropped to 6.1% in 2003 and 5.3% in 2004. Lesotho is member of
the Common Monetary Area (CMA). The national currency is the Lesotho Loti (LSL). On
15 June 2005, one US$ gave 6.9 LSL which is the same exchange rate as for South Africa.

South Africa
The Republic of South Africa is situated on 22-35° southern latitude, and 17-33° eastern
                                              s
longitude. The country has one of the world' highest levels of biological diversity, and the
climatic conditions in are subtropical to Mediterranean.
Neighbouring states of South Africa are Namibia, Botswana, Zimbabwe, Mozambique,
Swaziland, and Lesotho. The total area of South Africa is 1.223.201 km². Its capital is
Pretoria with about 1 million inhabitants. In 2003, the population attained 46.4 million with
an average growth rate of 1.9% between 1997 and 2003. Accordingly, the population density
is 36.4 people per km². Half of the South African population lives in the countries urban
parts. South Africa is subdivided into nine different regions. These are Eastern Cape, Free
State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Limpopo, North-West-
Province and Western Cape.
The long period of apartheid ended with the 1994 elections. South Africa is nowadays a
presidential democracy with several federative elements. Currently, the African National
Congress (ANC) forms the government together with the New National Party (NNP), with
Thabo Mvuyleva Mbeki being the president. The National Assembly with 400 seats and the
National Council of Provinces with 90 seats form a bicameral system. In the National
Assembly, the ANC has more than 2/3 of the delegates.
In 2003, the South African GDP attained 159.9 million US$, with a growth rate of 1.9%. The
service sector is the most important sector in the economy. With 65.2%, it contributes nearly
2/3 to the GDP. Following, industrial production contributes 31.0%, and agriculture only
3.8%. The annual rate of inflation was 5.7% in 2001, 9.2% in 2002 and 5.8% in 2003. The
Republic of South Africa, together with Lesotho, Swaziland and Namibia member of the
Common Monetary Area (CMA). The official currency is the South African Rand (ZAR).
On 15 June 2005, one US$ gave 6.9 ZAR. This is the same exchange rate as for the
Lesothoan Loti.




                                                                                           5
                                                       Government (organisation and strategies)


2    Government (organisation and strategies)
The radical changes in the political system of South Africa since 1994 have also had
repercussions in the area of water management. The democratisation of the country and the
granting of equal rights to all citizens were also reflected in the national legislation on water.
The process of transformation is nowadays still underway and many changes need to be
implemented until the desired level of equality will be achieved and the challenge of water
scarcity will be successfully met. As a consequence, strategies corresponding to new water
management approaches overlap with still-existing structures from before 1994.


2.1 Water policy


2.1.1   National level
The following section describes the current set-up and also the development of South
African water policy throughout the past years.
The National Water Policy (NWP) is directly inspired by the new South African government
policy followed since 1994, which focuses strongly on equitable and sustainable economic
development for the benefit of all South African’s people [7].
As a consequence, the previous legislation on water resource management, the Water Act of
1956 (Act 54 of 1956), was considered to be no longer appropriate, as it was strongly based
on the riparian system of water rights, which resulted in rather unequal access to water as
well as uncoordinated management approaches.
The 28 “Fundamental Principles and Objectives for a New South African Water Law”
constitute the foundation for the new water legislation in South Africa and reflect the
provisions of the South African Bill of Rights of the Constitution of South Africa (108 of
1996). The Fundamental Principles address all aspects of water management and are
clustered in the following six thematic areas:

Legal aspects of water:
•   stipulating the consistence of the water law with the Constitution and the values
    enshrined by the Bill of Rights,
•   declaring water resources a common good which is subject to national control,
•   establishing the use of water as a right to fulfil environmental and human needs rather
    than a property right, and clearly abolishing riparian water rights in connection with land
    ownership.

Water cycle aspects:
•   recognising the particular challenge of water management in the arid South African
    environment, the interdependence within the hydrological cycle as well as the
    uncertainties implicit to the predictability of the distribution of water resources.

Water resource management priorities:
•   establishing the main goal of “managing the quantity, quality and reliability of the
    Nation’s water resources to achieve optimum, long term, environmentally sustainable
    social and economic benefit for society from their use” (Principle 7 [7]),




                                                                                                6
                                                      Government (organisation and strategies)

•   identifying water to be used for serving human needs, as well as fulfilling ecological
    functions as ‘The Reserve’ and subjecting water use to authorisation,
•   stipulating a benefits-sharing approach for international water resources.

Water resources management approaches:
•   assigning to the national government the responsibility for and authority over water
    resource management according to societal values and public trust obligations,
•   advocating the equitable allocation of water resources and promoting the conservation of
    water as a preferred option, the linkage between water quality and quantity, the use of
    economic approaches in pollution control,
•   outlining the relevance of land-use management as an instrument for integrated water
    resource management,
•   establishing ground rules for the authorisation of water uses.

Water Institutions:
•   Determining basic principles for the institutional framework of water management,
•   Advocating the regional level as preferable for water management in order to enable all
    affected parties to participate.

Water Services:
•   Providing for the consistency of water services provision with overall objectives of water
    resources management,
•   Establishing the right of access to basic water services and the protection of the interests
    of the individual consumer and the wider public in situations of water services
    monopoly.
These principles are condensed in three major objectives for water resources management,
which pertain to the equitable access to water, achieving sustainable use of water as well as
an efficient and effective water use for optimum social and economic benefit.

2.1.2   International context of water policy in southern Africa
South African water policy needs to be placed in the wider context of water management
objectives established for the entire southern African region. The development and
emergence of the current policy framework for South Africa is complemented by several
international developments. These are briefly outlined to provide for a broader perspective in
understanding national water policy.
Among the major developments to be mentioned are NEPAD, the ‘New Partnership for
Africa’s Development’ as well as policy initiatives by the SADC, the Southern African
Development Community.
NEPAD establishes broad development goals with a particular focus on water resources. In
particular these comprise:
•   sustainable access to clean water for all,
•   the management of water resources as a basis for co-operation and development at the
    national and regional level,
•   the protection of ecosystems,




                                                                                              7
                                                      Government (organisation and strategies)

•   the co-operation on water issues in shared river basins,
•   the consideration of climate change implications for sustainable water management,
•   the promotion of irrigation and rain-fed agriculture to improve sustainable agricultural
    production and thus food security [36].
Efforts in the context of the SADC community have led to the identification of key
components for improved regional water resources management, which include [43]:
•   a conducive political environment and respective level of awareness in order to facilitate
    the adoption of integrated approaches towards water resources management,
•   political stability in order to facilitate co-operation and development in the southern
    African region,
•   far-reaching institutional, legislative and policy reforms in the water management field,
    taking into account aspects of sustainable development and environmental protection,
•   consideration of the relevance of a co-ordinated management of internationally shared
    resources following the established SADC protocol,
•   the need for the international community to increase the flow of financial resources.
These initiatives have their impact on and also partly reflect current and past development in
South African water management policy. In terms of policy formation as well as institutional
reform, South Africa definitely needs to be considered a leading state. However, these
manifestos also clearly demonstrate the need for international co-operation and co-ordinated
action in order to reap benefits, particularly in the case of internationally shared river basins
such as the Orange.


2.2 National water legislation and its relation to other relevant regulations


2.2.1   National Water Act
The National Water Act (NWA) of 1998 (Act 38 of 1998) derives directly from the
Fundamental Principles and Objectives for a New South African Water Law and the
National Water Policy, which propose new approaches for managing the national water
resources.
The NWA is the principal legal instrument relating to water resource management in South
Africa. It contains comprehensive provisions for the protection, use, development,
conservation, management and control of South African water resources. After its adoption
in 1998, concrete steps are now being undertaken in order to provide for its step-wise
implementation. These more strategic objectives are stipulated in the National Water
Resource Strategy (NWRS) [9]. The Minister of Water Affairs and Forestry is responsible
for managing and administering water resources as the public trustee of the nation’s water
resources. The minister’s responsibilities in this sense include ensuring that all water
resources in every part of the country are managed for the benefit of all persons, that water is
allocated equitably and that environmental values are promoted [7].




                                                                                               8
                                                      Government (organisation and strategies)


2.2.2   Other relevant legislation

Water Services Act
There is other legislation in the field of water management which complements the NWA,
the most relevant of which is the Water Services Act of 1997 (Act 108 of 1997) in
conjunction with the Strategic Framework for Water Services of 2003 (replaced the 1994
Water supply and Sanitation White Paper). Following a revision of the specific challenges
imposed on the Department of Water Affairs and Forestry (DWAF) as the main
administrative body by the adoption of the NWA, the following interfaces and interlinkages
of the NWA and the Water Services Act have been identified [7]. Starting with the alignment
of strategic planning for water resource management and water services provision over the
need for co-ordinating common regulatory and audit functions for both areas, the promotion
of partnerships for ensuring effective implementation, capacity sharing and common
information management and extended communication were identified as the main areas of
overlap, but also for potential synergies.
At the regional and local level, water services development plans need to be developed by all
metropolitan, district or local municipalities. These plans are to be included in the Integrated
Development Plans that municipalities must prepare in terms of the Municipal Systems Act
(Act 32 of 2000). The development furthermore needs to be considered in the context of the
catchment management strategies, which will be described in more detail below.

National Environmental Management Act
Other legislation also adopted in the field of environmental resources management supports
the thrust and aim of the NWA, but are administered by other departments of government
than the Department of Water Affairs and Forestry. Consequently, the NWA aims to be in
accordance with broad national environmental policy and the respective legislation. The key
legislation in this area are the National Environmental Management Act (NEMA) of 1998
(Act 107 of 1998) as well as parts of the Environment Conservation Act (ECA) of 1989 (Act
73 of 1989) [7].
Regulations made in the ECA define those activities that may have a considerable negative
effect on the environment. Activities currently carried out by the DWAF for the most part
count into this category, creating the obligation for the DWAF to ensure the accordance with
the ECA through appropriate measures.
In terms of compliance with NEMA, the DWAF has prepared a Consolidated Environmental
Implementation and Management Plan describing how the Department’s policies comply
with environmental legislation. The Plan is to be reviewed on a four year basis and has to be
submitted to the Department of Environmental Affairs and Tourism (DEAT). The DWAF
has furthermore adopted an integrated environmental management framework to ensure that
environmental issues are addressed throughout the life cycle of all water-related projects. In
the broader framework of government reporting on its commitment to Agenda 21, DEAT
prepares a regular State of the Environment Report for South Africa. The DWAF aims to
contribute to this document with its regular State of the Water Resources Reports.

National Disaster Management Framework
Other policy areas with an interface to water policy are the waste management field, where
amendments to current approaches are expected throughout 2005, as well as national
legislation on disaster management (National Disaster Management Act, 57 of 2002), which
is also a crucial area in relation to water resources management. Interlinkages exist with
regards to the management of floods caused either by extreme naturally-occurring rainfall




                                                                                              9
                                                      Government (organisation and strategies)

events or by dam failures. The DWAF will contribute to the development of a National
Disaster Management Framework detailing the specific risk arising from water resource
management. Disaster management planning is furthermore to be included in other
documents relating to water management at the regional and local level [7].
Of specific relevance in the context of large infrastructure developments are the interlinkages
to the relevant provisions of the Public Finance Management Act (Act 29 of 1999), which
details financial and asset management, also in the context of natural resource management.


2.3 Government actors responsible for water management

Institutional arrangements are key determinants for the effectiveness of policy
implementation. Also, an appropriate institutional set-up provides for the alignment of the
requirements of the NWA with the interests and demands of water users and other relevant
stakeholders.
It is one aim of the NWA to progressively decentralise the responsibility and authority for
water resources management. To this end new institutions have or will have to be created,
while some of the already existing institutions will have to be changed in order to provide for
the consideration of new policy approaches [47]. The following description provides an
overview of the status quo and describes where adjustments will be necessary in future.

2.3.1   Minister of Water Affairs and Forestry
The Minister of Water Affairs and Forestry acts as the public trustee for national water
resources for the national government, and in this function delegates most of her or his
powers and duties to departmental officials or office holders of water management
institutions, except the responsibilities for:
•   the specification of water requirements for international rights and obligations,
•   planning for a contingency to meet projected future water needs,
•   the authorisation of water transfers between water management areas and water uses of
    strategic importance.

2.3.2   Department of Water Affairs and Forestry
Currently, the department is the key institution for the administration of all aspects of the
NWA for the Minister. This includes the development and implementation of strategies and
internal policies as well as planning, developing, operating and maintaining state-owned
water resource infrastructure.
This role, however, is going to change, with regional and local water management authorities
starting to operate within the coming years [7]. Eventually the department’s role will be
limited to devising the national framework and strategies and the management of South
Africa’s international relationships.
This transformation of the department’s tasks will have the biggest impact on its regional
offices since these are currently still responsible for direct service provision. The question of
how development, financing, operation and maintenance of water infrastructure will be taken
care of still needs to be solved. Several institutional choices exist in this respect depending
on the specific water management area to be addressed.
Other relevant government departments in the context of water management are the
following:




                                                                                              10
                                                     Government (organisation and strategies)

•   Department of Agriculture, which regulates power in relation to the protection of
    agricultural resources, i.e. soil, water and plants,
•   Department of Environmental Affairs, which promotes the optimal utilisation of the
    environment.

2.3.3   Catchment management agencies




Figure 2: Overview of water management agencies in South Africa


At the sub-national level the most important structures that have been introduced in the past
years are the so-called water management areas (WMA). These administrative units for the
most part follow hydrological catchments and are depicted below.
Catchment management agencies will the main administrative bodies to be established in
each of the 19 water management areas. Their tasks will comprise the management of water
resources as well as the co-ordination of water-related activities of water users and other
water management institutions within their area of jurisdiction [7]. One of the primary tasks
of the catchment management agencies is the development of a water management strategy
for each catchment area which needs to be in compliance with the NWA. At the current stage
the responsibility for devising water management strategies is carried out by the Regional
Offices of the DWAF while the CMA are still in a developing phase. The CMA will fulfil
powers, function and duties, which might be either original, i.e. inherent to the mandate of
the CMA, or assigned, i.e. issued by the minister or delegated.
The CMA will consist of the following organs:
•   Governing board: comprising representatives from different sectors and those appointed
    to provide for a sufficient balance as far as gender, demography, communities without
    access to water and expertise are concerned; decides on the overall strategy of the CMA,
    lead by a chairperson;
•   Temporary standing committees: appointed by the governing board; these committees
    might address certain issues of special interest,
•   Committees, such as executive committees and other consultative bodies;
•   Chief executive officer, appointed by the governing board, but not its chairperson,




                                                                                          11
                                                      Government (organisation and strategies)

•   Staff of the CMA


2.3.4   Other Institutional Actors
Other institutions foreseen by the NWRS are briefly outlined below:

Advisory Committees
•   may be established on discretion of the minister for a number of different purposes and
    functions. An example for an already existing committee is the Advisory Committee on
    the Safety of Dams which goes back to the 1956 Water Act and serves as a reference for
    committees to be established in future.

Institutions for infrastructure development and management
•   are to be established for the management of major water infrastructure of national
    importance which transfer water across national boundaries or between water
    management areas, serve multiple user sectors or large geographic areas, comprise
    several interconnected catchments or serve a strategic purpose [7]. Such infrastructure is
    abundant in South Africa and the institutional arrangement to separate this function from
    the current departmental ties is currently being discussed. Main issues in this discussion
    are the degree of disaggregation of the national and regional/local level and the
    mechanisms for financing of infrastructure.

Institutions for international water management
•   refers to institutions to be established or already existing in order to implement
    international agreements pertaining to the management of shared water resources. There
    are already three existing institutions in this category. One of them is the Trans-Caledon
    Tunnel Authority managing the RSA portion of the LHWP.
The LHWC and the Orange-Senqu River Basin Commission, as the main international
organisations in the Orange basin, have a different legal standing and serve a different
purpose. The interplay of institutions at the international, national and regional level will be
discussed in more detail in deliverable 1.3.1 of the NeWater project, which focuses
specifically on the transboundary aspect of water management in international basins.

Water Tribunal
•   established in 1998, it replaces the Water Court of the 1956 Water Act and is an
    independent body which is mainly designed to handle appeals made against
    administrative decisions by the responsible authorities and water management
    institutions.


2.4 Water policy implementation

The NWA requires the Minister of Water Affairs and Forestry to establish a National Water
Resource Strategy (NWRS) in a phased and progressive manner with separate components
over time, which furthermore is to be reviewed in intervals of not more than five years. The
NWRS thus constitutes the implementation strategy for the National Water Policy and
provides a concrete framework for the future management of water resources in South Africa
[7]. Reflecting the nascent status of the new South African water policy, the first edition of
the NWRS was issued in September 2004.




                                                                                             12
                                                     Government (organisation and strategies)

The strategy as such is the result of a long process of policy formation, which began after the
adoption of the NWA in 1998, which in itself was a continuation of the overarching policy
process initiated in 1994. There was a general consensus that not all provisions of the Act
would come into force with the enactment of the legislation. [4] This approach was
considered necessary due to the large scale of changes required on administrative and
operational procedures and the limited resources available to realise this change. Thus the
formulation of strategies for some policy areas was put on hold to allow for the creation of
new departmental units.
One of the main drivers of the implementation process and the formulation of the NWRS
was the Team for the Implementation of the National Water Act (TINWA), which provided
for the collation of the input of various teams focussing on different thematic areas of
implementation. Following the submission of the initial concept for the NWRS in 2001,
consultations were held during 2002 leading up to the final approval of the strategy by the
end of 2003 and its publication on the internet for public comments. After the integration of
the public comments the final version was published in late 2004. It is expected that the long
term success of the national water policy will depend on a strong, sustained and consistent
leadership of people with the strategic and visionary capacity to oversee and resolve the
political struggle of competing interests. This will have to be promoted by capacity-building
on the national level [4].
The strategy document is introduced by a general chapter on the basic principles of water
policy, water law and water resources management as well as an account on South Africa’s
water situation and strategies to balance supply and demand. The main chapter of the
strategy refers to strategies for water resources management, detailing such areas as the
protection of water resources, the implications of water use, water conservation and water
demand management, strategies pertaining to the pricing of water and financial assistance.
Furthermore, the institutional set-up for water management as well as provisions for
information and monitoring, disaster management isaddressed. The strategy is rounded off
by a proposal for the anticipated programme of implementation and a discussion of financial
implications [7].
The NWRS is legally binding and represents an enduring framework for the management of
water resources at the national level. The NWRS may be amended to account for changing
boundary conditions; however any changes will only be effective after compulsory
consultations with all relevant stakeholders.
The NWRS finds its counterpart at the smaller scale in the catchment management strategies
(CMS), which are to be elaborated for each of the newly created water management areas.
The catchment management strategies provide the opportunity for taking into account local
conditions and circumstances. Still, for the establishment of a consistent national approach
towards water resource management, CMS need to follow the principles set out in the
NWRS to avoid conflicting interpretations of the NWA [7].
In the short term, the CMS will be prepared by the regional offices of the DWAF until
management in the catchment areas will be taken over by the catchment management
agencies. In this phase an internal strategic perspective (ISP) process will provide a
framework for the management of resources in the catchment areas to provide for a common
set of rules with regard to issuing new water licenses and the information of current water
uses. The ISP process will also help in creating awareness among all stakeholders for the
transformation process at the local level.
In the case of the Orange River basin the ISP for the sub-basin was preceded by a process
where an Overarching ISP was compiled for the Orange River System in order to provide for
coherence among both Orange Water Management Areas (Upper and Lower Orange
WMAs).




                                                                                            13
                                                                                          Government (organisation and strategies)

The following figure depicts the interrelations between the different national, provincial and
local strategies in the environmental field and the strategies for water resources management
described above.

                                   DW AF             O T H E R N A T IO N A L D E P A R TM E N TS ,             SECTORAL
                                                   L O C A L & P R OV IN C IA L G O VE R N M E N T

                                                         N atio n al strateg ies fo r: en viro n m en t,
                                                                                                                   ESKO M
                                                        ag ricu ltu re, lan d u se, in du stry, m in in g ,,
                                                        ag ricu ltu re, lan d u se, in du stry, m in in g
    N A T IO N A L                  NW RS
                                                               en erg y, h ealth , h o u sin g, ru ral
                                                            d evelo p m en t, u rb an ren ew al, etc.
                                                                                                                    L arg e
                                                                                                                  In du stry

    P R O V IN C IA L                                                                 cial G ro w
                                                                             P ro vin P ro vin cialth
                                                                                    D evelo m en
                                                                                 & D evelo pp men t t
                                           C M S sCS sS s
                                               CS
                                             C M M sM             W ater
                                                                  W ater                                            M in in g
    CATCHM ENT                                                                       S trateg ies
                                                                                                                 A g ricu ltu re


                                                                                                                  H o u sin g
                                                                                      In teg rated
    LOCAL                W UUU A
                          UW U
                          WA A
                             U
                        W WWAAA                       Watere rvices
                                                      ater Se e rvices
                                                  W ateratere S rvices
                                                    WWW SS S rvices
                                                        ater e rvices               D evelo p m en tt
                                                                                    D evelo p m en                In du stry
                          P sB P
                            PP
                        B BBB P                D evelo p m enenPen P s lan
                                                 D D D evelo mm t lan P
                                                   evelo p mpt en P tPlan
                                                   Develo p m entt lan
                                                     evelo p          lan
                                                                                          P lan s
                                                                                          P lan s


                                     W SP BPs



Figure 3: Interlinkages among different strategies for water resources management []


2.5 Scale dimensions of government


2.5.1     Levels of government

Situation before 1994
At the time, water management in South Africa was very much top-down also in reflection
of the overall governance approach throughout the apartheid regime. Until the regime change
in 1994, the Minister of Water Affairs represented by the DWAF was responsible for most
aspects of water resources management in the Republic of South Africa. In this function, the
DWAF had to co-ordinate with several other governmental departments at the national level.
At lower levels, authorities of the four then-existing provinces were mostly involved in
service provision as well as environmental protection measures. Regional service councils
provided bulk water services to municipalities.
Parallel to this government scheme existing in the Republic of South Africa, a system of
independent national and self-governing States emerged, aiming to create separate
institutions for each racial and ethnic group. While some of these territories were politically
autonomous, but economically, financially and otherwise completely dependent on South
Africa, particularly the water sector was characterised by a lack of clear structures. In certain
cases it was just unclear whether the ministers of the self-governing territories or the
ministers of the Republic of South Africa should issue certain permits. For example, the
issuing of permits relating to the use of water for irrigation were the responsibility of the
territories’ authorities, while it was not clear who should issue permits for industrial water
use.

Current situation (after 1994)
Following the new Constitution of the Republic of South Africa in 1996, the various national
States and self-governing territories were incorporated in the Republic to form a unified




                                                                                                                                   14
                                                     Government (organisation and strategies)

country again. The government is structured into national, provincial and local spheres,
which are expected to be distinctive, while at the same time interdependent and interrelated.
The most important novelty in contrast to the former system is that provincial and local
governments are therefore spheres of government in their own right and not functions of the
national government anymore. The Constitution, furthermore, assigns to the respective level
of government functional areas of responsibility [47].
Water resources management, as a part of water management, is an exclusively national
government function. Managing activities affecting the quantity and quality of water might
be subject to other spheres of government. The national government therefore has the
mandate to ensure, in co-operation with the other spheres, that the limited water resources
are used to improve the quality of life of all South Africans. Each sphere has legislative and
executive authority as far as the specific functional area is concerned. However, there is a
general understanding that, if considered necessary, national measures should prevail, for
example with regards to environmental protection or the setting of national standards for
service provision [47].
The Constitution requires all spheres of government to co-operate and consult with each
other and respect each other’s competences and responsibilities. Power and functions may be
transferred from one level of government to another. The national government level is a very
powerful position as it collects the majority of taxes and distributes funds mainly according
to its determined priorities.
The system of intergovernmental relationships is still evolving in South Africa. So far, it has
been the co-operation between the national and the provincial governments which has been
fostered the most. Particularly the establishment of catchment management agencies and the
development of the respective management strategies is expected to contribute to the
principles of co-operative government relating to water resources management and the
provision of water services [7].




                                                                                            15
                                                                          Government (organisation and strategies)


                                                     Regulators

        Creating Framework for               Regulating Impacts on               Regulating Land Users
        Service Provision                    Water Provision
                                                                                 National
        National                             National                            •Department of Land Affairs
        •Department of Water Affairs         •Department of Water Affairs        •Department of Trade &
        and Forestry                         and Forestry                        Industry
        •Department of Provincial                                                •Department of
        and Local Government                 Provincial                          Environmental Affairs &
                                                                                 Tourism
        Provincial                           Local
                                                                                 Provincial
        •Department of Local                 Other                               •Department of Land
        Government                           •Catchment Management               Administration
        •Department of Agriculture           Agency                              •Department of Housing
                                             •Joint Water Commission
        Local                                                                    Local
        •District councils
                                                                                 Other
        Other




        Service Providers
                                             Land Use (Water Users)
        National                                                                 Facilitators
        •Department of Water Affairs         Settlements                         •Traditional leaders
        and Forestry                                                             •NGOs and CBOs
                                             Agriculture                         •Advisory committees
        Provincial                                                               •Fora
                                             Infrastructure Development          •Water communities
        Local                                                                    •Agrio SA
        •District councils                   Industrial                          •Chamber of Mines
        •Transitional local councils
                                             Mining
        Other
                                             Other                               Other
        •Water boards
                                                                                 •Financiers
        •Water user associations
                                             Recreation                          •Manufacturers
        •Water services committees
                                                                                 •Consultants
                                             Environmtental                      •Researchers

                                             Tourism




                Providing water services:
                             Intervention:
                     Monitor and regulate:



Figure 4: Actors in water management at different scale levels [47]

2.5.2       Time scales
Corresponding to the new role of the national government in providing the political
framework for water management in South Africa, the time scale of the NWRS is rather
long-term. Still, the possibility of changing boundary conditions and the necessity for
adapting the strategy is clearly acknowledged. Changes are subject to mandatory
consultations with all relevant stakeholders. A regular review is furthermore required on a
five-year basis [7].
Policy formulation and planning on the lower levels of government is usually more focused
on the implementation of national strategies and policies in the short-term. For example,
municipalities are required to prepare five-year Integrated Development Plans. These plans
need to be coherent with policy frameworks developed at the national and provincial level.
Scientific research on potential effects of changing environmental and economic conditions
on water resources management is gaining in importance [32]. Of particular relevance in the




                                                                                                               16
                                                     Government (organisation and strategies)

South African context are future implications of climate change and land use development.
National policy making is actively anticipating negative trends in these two fields and is
pursuing a policy of preventative measures supported by intensive monitoring and research
[7].


2.6 Excursus: Lesotho – Government

In Lesotho, water policy is far less elaborate than in South Africa and is heavily influenced
by the developments related to the Lesotho Highlands Water Project. Consequently, the
discussion of the situation in Lesotho and in particular the subject of policy implementation
will strongly relate to this project.

2.6.1   Water Policy
Water Policy at the national level is determined by the National Environmental Policy of
1998 [31]. This policy provides a framework for the strengthening of the overall
commitment to environmental resource protection in the Kingdom of Lesotho and is
addressed to several sectoral ministries. The policy is directly derived from the Constitution
of Lesotho of 1993, Section 36, which states that:
“Lesotho shall adopt policies designed to protect and enhance the natural and cultural
environment of Lesotho for the benefit of both present and future generations and shall
endeavour to assure all citizens a sound and safe environment adequate for their health and
well-being.”
The National Environmental Policy is furthermore inspired by internationally agreed
principles and conventions in the area of Sustainable Development and Environmental
Protection, as well as the policies and strategies devised by the Southern Africa
Development Community [SADC].
The policy addresses a broad range of environmental problems facing Lesotho today. The
most pressing challenges have been identified as:
•   accelerated soil erosion and land degradation,
•   loss of arable land and desertification,
•   periodic drought and scarcity of water,
•   pollution of land and water courses,
•   low level of environmental awareness among policy and decision-makers,
•   low level of capacity to deal with environmental problems,
•   lack of public participation.
Water resources management is mentioned in section 4.15 of the National Environmental
Policy. The formulated objective here is to ‘develop integrated and co-ordinated, effective
and efficient approaches to conservation and use of limited water resources’. Further
emphasis is put on the promotion of stakeholder involvement, the importance of direct
access to potable water, the training for more responsible use of water resources as well as
the interlinkages between small-scale irrigation schemes and the protection of soil and forest
resources.
Among the strategies proposed are the following:
•   demand-side management based on community needs and priorities,




                                                                                           17
                                                       Government (organisation and strategies)

•   encouragement of water harvesting strategies,
•   implementation of the Water Master Plan and investment programmes,
•   promotion of research and conservation measures in collaboration with neighbouring
    SADC countries,
•   development and enforcement of standards on water quality and pollution control,
•   protection of fragile mountain ecosystems.

2.6.2   Main legislation
The main legislation in the water sector is the 1978 Water Resources Act [21], which
provides for use, control and conservation of water resources. According to the provisions of
the Water Resources Act:
•   water uses other than domestic use require a permit, while domestic use has priority over
    all other uses,
•   the use of water is closely tied to the use of land,
•   the Minister can declare certain areas to be protected areas for the purpose of protection
    and development.
Further legislation relevant to water resources is scattered in several orders and acts
administered by different departments without any consistency or overall guidelines.

2.6.3   Other relevant legislation
Lesotho has developed manifold statutes governing natural resources and protection of
specific environmental components. These pieces of legislation, some of which are outdated,
are currently being enforced by sectoral agencies like traditional chiefs and civil servants;
and civil society is seldom involved in structuring the national environment policy.
Harmonisation and comprehensiveness of laws is necessary because at present the
environmental laws only focus on a few areas like forestry, pastures, soil and water
conservation.
One of the more recent pieces of legislation is the Environmental Act of 2001[23]. It
constitutes a framework for the institutionalisation of sustainable development in Lesotho
and is guided by three principal objectives:
•   secure for all Basotho a clean and healthy environment. (It is noteworthy that the bill
    expands on the constitutional mandate by granting each individual the right to a clean
    and healthy environment, and empowers all persons to take legal action against any
    activity that may jeopardise their well-being. It also obligates a reciprocal duty on
    citizens to safeguard and enhance their environment)[13].
•   establish the institutional structures and administrative mechanisms that would enable
    government machinery to respond, in a co-ordinated and systematic manner, to
    prevailing environmental problems and arrest emerging ones.
•   development of a comprehensive codification of legal provisions relating to the
    protection and sustainable management of ecosystems and natural resources, and
    establishment of a cross-sectoral regulatory framework based on a uniform and shared
    set of decision-making principles.
Although the Act is perceived as good legislation, its effective implementation is, however,
being constrained by the fact that the Lesotho Environment Authority, which is envisaged
under the Act, has not yet been established.




                                                                                           18
                                                    Government (organisation and strategies)

2.6.4   Legislation in relation to LHWP
An important legislative document affecting water management in Lesotho is the treaty
establishing the Lesotho Highlands Water Projects (LHWP), entered into by Lesotho and
South Africa in 1986. The treaty, apart from detailing the volume of water to be delivered to
South Africa as well as the royalties to be paid to Lesotho, provides for the protection of
quality and quantity of water in the LHWP area, but does not consider other relevant
components of utilisation of shared water courses between the two countries.
The payment scheme foresaw that South Africa was to pay for everything relating to the
transfer of the water, including the implementation, operation and maintenance costs of all
facilities involved, as well as compensation for the displacement of individuals and
communities. Lesotho would finance the hydroelectric-power component of the project. In
the years following the treaty, protocols were added in order to provide for supplementary
arrangements.

2.6.5   Government Actors
The highest national authority for the management of water resources is the Minister of
Natural Resources, formerly the Minister of Water, Energy and Mining. This ministry is
responsible for the co-ordination of these three sectors and also for the LHWP. Specific
                                                                             s
programmes and projects in managing this task are carried out by the ministry' departments,
the Geological Survey and the Department for Mines and Water Affairs as well as parastatal
organisations, such as the Lesotho Electricity Corporation - LEC.
Other national ministries with an interest and stake in water management are the Ministry of
Agriculture, the Ministry of Local Government, as well as the Ministry of Tourism.
The Ministry of Environment, Gender and Youth, which was established in 1998, is
spearheading efforts towards mainstreaming environmental issues in Lesotho policies.
Achievements include the formulation of the above-mentioned environmental policy, and of
the environmental Impact Assessment Guidelines. The ministry also produces the State of
the Environment and Biodiversity Reports, which give a clear picture of the environmental
situation and of the underlying causes such as poverty, as well as suggesting remedial
measures. The ministry also prepared the Water Quality Guidelines and the Industrial
Affluent Standards, as well as pre-feasibility studies on solid waste management[1].
It was in 1994 that a small National Environmental Secretariat (NES) was created in the
Office of the Prime Minister, with the aim of advising the government of Lesotho on matters
relating to environmental management. One of the achievements of the NES was the
development, in 1995, of Lesotho’s Agenda 21 Action Plan, which was a refinement of
Agenda 21 adopted in 1992 in the aftermath of the Earth Summit held in Rio de Janeiro. The
objective of the plan was to mainstream environmental issues into national policies
The Lesotho Environment Authority (LEA) is planned to be the principal agency for the
management of the environment. There are plans to transform the currently existing Lesotho
Environment Secretariat (LES) as stipulated by the National Environment Policy for
Lesotho. As part of this mandate the LEA will be responsible for co-ordinating
environmental planning through close dialogue with all relevant ministries, conducting
environmental impact statements, devising research activities and promoting public
environmental awareness as well as the preparation of a national ‘State of the Environment
Report’ on a five year basis[13].

2.6.6   Parastatal Actors
Water management in Lesotho is furthermore determined by actors in the framework of the
LHWP, the most important of which are described below.




                                                                                          19
                                                    Government (organisation and strategies)

The Lesotho Highlands Development Authority (LHDA) was set up to manage that part of
the project that falls within Lesotho’s borders - the construction, operation and maintenance
of all dams, tunnels power stations and infrastructure - as well as secondary developments
such as relocation, resettlement, compensation, supply of water to resettled villages,
irrigation, fish hatcheries and tourism.
The Trans-Caledon Tunnel Authority (TCTA) takes care of the delivery tunnel transporting
the water over (or rather, under) the border (the Caledon River) to the Ash River, as well as
all structures required to integrate and control the flow of Lesotho water into the river.
The Lesotho Highlands Water Commission (LHWC) is a bi-national body consisting of three
delegates from each country, that advises the LHDA on design, technical acceptability,
tender procedures and documents, cash flow forecasts, allocation of costs and financing
arrangements.

2.6.7   Policy Implementation
Generally, the implementation of environmental - and therefore also water-related - laws
presents considerable deficits in Lesotho. Many of these laws have been found to be reactive
rather than preventive. Other factors leading to poor enforcement include poorly trained
personnel, inadequate financial resources, weak administrative and organisational structures,
institutional conflicts (chiefs vs. central government) scarcity of monitoring equipment and
lack of comprehensive and clearly articulated environmental-education and public-awareness
programmes [13]. Civilian involvement through educational programmes in schools, villages
and through the media is of pivotal importance in order to remove or change inherited
attitudes and practices.
To foster the implementation of its National Environmental Policy, a National
Environmental Action Plan was formulated in 1989, which was supplemented by the
National Action Plan to implement Agenda 21, which was launched in May 1994 and
incorporates sectoral priorities and national plans for implementing international conventions
on biodiversity, climate change and desertification control. The implementation of NEAP
has, however, been slow and was hampered by the delays in establishing a National
Environment Authority.
The National Environmental Policy also makes reference to a ‘Water Master Plan’.
However, no further information could be obtained on this planning tool. Other sources
mention the adoption of a water demand strategy in 1999, which addresses water
conservation in industry and, to a limited scope, in agriculture. The results obtained in the
implementation process have not been available for this study.




                                                                                           20
                                                                 Property rights/markets/prices


3    Property rights/markets/prices

3.1 Ownership of water and rivers/ water use rights

Situation until 1994
The issues of property rights, i.e. land management and water use, are inextricably linked in
South African history. While the 1956 Water Act had not been explicitly discriminating, the
1913 Land Act clearly was. Still, at that time the right of access to water had been tied to the
ownership of land, following the riparian principle. According to this principle, access to
water was only granted to those alongside or under whose land it was found. Ownership and
access to land was granted according to racial criteria, thus also automatically limiting access
to water. The act and subsequent legislation in 1936 restricted black people to ownership of
only 13 percent of the country, while they made up about three-quarters of the population.
The riparian rights-based approach developed throughout the South African history of
colonisation and segregation. As the basic principle, all natural rights pertaining to the land
also belonged to the owner of the land in perpetuity. So-called private water, i.e.
groundwater, was the exclusive property of the owner on whose land it was found and the
owner was entitled to use, alienate and dispose of it, with the state having almost no control
over it. The use of public water, i.e. rivers and streams, was declared common to the riparian
owners and a system of proportionate sharing of the water by riparian owners was applied.
Water allocation for land not adjoining a river was subject to special legislation in each
individual case.
This approach was modified in the following decades, taking into account increasing water
demands and emerging challenges with the ever-scarce resource. With the 1956 Water Act
the state received more power over the rights to use water, and the act gave place to
industrial use of water and created structures for non-riparian landowners to obtain rights to
water. The riparian rights principle still applied in the dispute-settling Water Court.
However, a lack of data on water use and technical difficulties prevented court decisions on
water use rights in many cases. Under the framework of the 1956 Water Act, control over
industrial and urban water uses was exercised by the water boards, which provided bulk
water for these uses and for sewage schemes in their area of jurisdiction.

New approach after 1994
Considering this past approach to water management, the new strategy initiated by the White
Paper on a National Water Policy in South Africa and the ensuing NWA is fundamentally
different. Water allocation is to be based on the overriding principles that ‘all people should
have access to sufficient water'and ‘the protection of ecosystems that support the water
resources’. The legislation foresees that all usage of water should be licensed and registered.
To this end the NWRS is putting forward a complex licensing scheme for the use of water
replacing the previous system of water rights and entitlement, which had been based on the
ownership of riparian land. The approach promulgated relies more on administrative,
limited-period and conditional authorisations to use water.




                                                                                             21
                                                                 Property rights/markets/prices


3.2 Cost recovery

Historic perspective
Historically speaking, water resources management in South Africa has been less based on
the cost recovery system and more on subsidisation of major infrastructure developments.
For example, the Orange River Development Project was in its initial phase based on a large
underestimation of cost-recovery. Already the first project assessment revealed that the real
project costs were much higher than the ones in the original proposal. But the government
ignored this fact and subsequently the project costs for the first phase exceeded the estimated
costs for the full project.[11]
This attitude slowly changed in the 1980’s. In 1986 the Water Commission issued a report
on the “Management of Water Resources of the Republic of South Africa”. This report
focused on the economic aspects in water management and introduced stronger schemes for
economic efficiency and cost recovery. The ORDP has been significantly influenced by this
report and in the following period the project approach shifted to more cost efficiency.[11]

New approach
Under the currently evolving approach, cost recovery is considered the main approach
towards securing funding for water management activities [9]. To this end a pricing strategy
will be developed to contribute to achieving equity and sustainability in water matters. Prices
are to represent the real cost of managing water resources and supplying water. Thus a full
recovery of costs is envisaged at the national scale. Provisions are foreseen to supply
subsidies for historically disadvantaged groups to ensure the equitable use of water
resources. The charges are intended to serve the following purposes:
•   funding water resource management (monitoring and protection of water resources and
    water conservation),
•   funding water resource development and the use of waterworks (planning, design and
    construction, operation and maintenance of water infrastructure, cost of water
    distribution),
•   achieving equitable and efficient allocation of water (setting economic incentives to
    encourage more efficient use of water) [9].
The NWA provides for the following types of water use charges:
•   pricing strategy for abstracting and storing water and stream flow reduction activities,
•   charges for waste water discharge.
The charging system for waste water discharge will be largely based on the polluter-pays
principle and take into consideration point as well as diffuse sources of pollution. In this
sense it is intended to replace more command and control-based approaches through
economic incentives schemes. The tariffs will be structured according to the volume of water
discharged, the concentration of pollutants and the observance of threshold values.
Water use charges will be levied specifically for each of the end-use sectors: municipal water
services, industry, mining and energy, agriculture and stream-flow reduction activities.
Catchment management agencies, once established, will finally receive the responsibility for
setting charges as well as collecting and disbursing revenue.
The pricing and charging systems for the above-mentioned areas are currently being
developed and expected to enter into force within the next years. Intensive stakeholder
consultation is foreseen in the development process of these regulations.




                                                                                               22
                                                                Property rights/markets/prices



3.3 Excursus: Lesotho – Property and Rights

Lesotho context
The 1978 Water Resources Act assigns the ownership of all water within Lesotho to the
Basotho Nation. The power to control and regulate the use of water however, is exercised by
the Minister of Natural Resources. The use of water requires the issuance of permits. In cases
where permits were granted, and the use of land occupied by another party was required, the
water user would have to seek permission for a servitude over the land.
The more recent National Environment Policy furthermore advocates the objective of
providing access to potable water for all people. Whether this also translates into a right of
access to water can not be derived from the information available.
The National Environment Policy also contains as basic principle that the true and total cost
of environmental use and abuse are borne by the user, thus enacting the polluter pays
principle. To what extent this is implemented in the water sector needs to be subject to
further assessment.

LHWP context
The issues of compensation and cost recovery play a prevalent role in the context of the
LHWP [18]. As it is the case with many large infrastructure projects, particularly dams,
those who bear the social and environmental costs and risks, are not the same as those
reaping the social and economic benefits. In the case of Lesotho, the LHWP has undeniably
had a profound impact on the national economy, accounting for 13.6 percent of the GDP in
1998. Royalties from the sale of water and project-related custom dues made up to 27.8
percent of all government revenue [46].
At the same time, these benefits have not reached the nation’s poorest.
Furthermore, while it is required by World Bank Policies, that communities affected by the
Project would receive compensation well in advance of resettlement, this has not been the
case for those affected by the LHWP. No compensation was provided prior to resettlement,
the areas offered for resettlement have been mostly inadequate [26].
Downstream effects of the Project have only been studies after construction of the first dams
had been completed. While a study on “Instream Flow Requirements. IFR” has been
completed by now, the entire impact of further dams on the environment and the livelihoods
downstream is still not clear.
Generally, the attention for these rights issues has increased over the past years, still the
deficits in implementation remain obvious [28].




                                                                                           23
                                                              Stakeholder/citizen participation


4       Stakeholder/citizen participation
Stakeholder participation is one of the most important prerequisites for successful integrated
water resource management. Today this is also reflected by the existing water policies in
South Africa. This section describes the path to the modern approaches to public
participation under the new Constitution of 1996, their implications and their practices.

4.1 Constitutional settings

In times of colonisation and the apartheid regime, large parts of the population were
excluded from any political activity and thus public participation practically did not exist in
South Africa. Democracy as the prerequisite of public participation is a rather new
experience for South African people. With the adoption of the New Constitution in 1996,
South Africa empowered all citizens to participate in the political life of the Republic. The
main provisions of the Constitution for public participation in administrative procedures are
the following:
Constitution of South Africa, Chapter 10 Public Administration, Art. 195. (1) “Public
administration must be governed by the democratic values and principles enshrined in the
Constitution, including the following principles:”
[...]
“e Services must be provided impartially, fairly, equitably and without bias.
f People's needs must be responded to, and the public must be encouraged to participate in
policy-making.
g Public administration must be accountable.
h Transparency must be fostered by providing the public with timely, accessible and
accurate information.”
The principle for good governance is laid down in Chapter 3, section 41:
“ 41. (1) All spheres of government and all organs of state within each sphere must:
[...]
h. co-operate with one another in mutual trust and good faith by
          i.     fostering friendly relations;
          ii.    assisting and supporting one another;
          iii.   informing one another of, and consulting one another on, matters of
                 common interest;
          iv.    co-ordinating their actions and legislation with one another;
          v.     adhering to agreed procedures; and
          vi.    avoiding legal proceedings against one another.”



4.2 Water management and the public in the past

The relation between water policies, government agencies and the public for the time before
the Constitution of 1996 shall be analysed on the basis of the two major water management




                                                                                            24
                                                              Stakeholder/citizen participation

projects in South Africa and Lesotho, that are the Orange River Development Project
(ORDP) and the Lesotho Highland Water Development Project (LHWP).
The first ideas for the ORDP originated in the 1920’s, but the project became more concrete
in the 1950’s, the time the Apartheid Regime was established in South Africa. By this time
white farmers were very important to the political regime and thus one of the governments
policy priorities was the promotion of farmers’ interests. Farmers belong to the main
beneficiaries of the ORDP.
But the final decision to launch the ORDP was only taken in the 1960’s, when the criticism
of the Apartheid Regime grew more and more outside South Africa and the Apartheid
Regime was threatened by international isolation. At this time the ORDP seemed to be the
right investment to restore international confidence in South Africa. This project not only
proved that South Africa was capable of handling such a huge project, but it also created
extensive options for international business co-operation.
In the beginning of the ORDP only a minimal part of the public opinion was considered in
the project planning. The interests of large parts of the population, like small landowners,
farm workers and other marginalised, and the mostly black population were even
disadvantaged by the project.[53]
In the 1950’s and 60’s consultation was limited to engineers and government representatives,
as it was “the age of the social engineers”[53]. By the end of the 1960’s, in a time when
economic factors became more and more important, stakeholders from the industrial sector
started to play a more important role. In the later decades the government started to include a
growing number of stakeholders in policy formulation processes. In the following some
important step-stones are outlined:
•   The Water Commission’s 1972 report was drafted after consultation with many
    professionals and administrators.
•   The 1986 policy document “Management of water resources in the Republic of South
    Africa” was submitted to over 50 municipalities, unions, consultants, water boards and
    research organisations.
Regardless of these tentative efforts, real participation in the sense of a free democracy
didn’t exist before the adoption of the Constitution of 1996.
An example with extensive consultations is the LHWP, that constitutes the final phase of the
ORDP and occurred between 1995 and 1998. It involved the governments of South Africa
and Lesotho, various departments and consulting engineers, as well as many civil interest
groups. An important role was played by the Development Research Institute (DRI), an
NGO representing 100 civic associations in Gauteng. This NGO highlighted several pitfalls
of the project that otherwise would not have emerged [11].
After the adoption of the Constitution, the approach to water management as a whole and
public participation in particular changed significantly. The main policies and approaches are
described in the following sections.


4.3 Provisions for public participation in water management

While the Constitution already reflected the need of public participation in administrative
decision making, the first step to fulfil this constitutional demand in water management was
the White Paper on National Water Policy [5] for South Africa.
In this paper it is stated, that: “With the adoption of this White Paper, a new process of
consultation will begin in support of the development of a new National Water Bill and




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                                                                           Stakeholder/citizen participation

regulations for implementation of the policy. Participation will include communities, water
users, academic institutions, scientific councils, and Government at national, provincial, and
local levels” [5].
This policy is enhanced in the National Water Act of 1998. The provisions of the NWA in
regard to public participation are listed in the following Table. All comments that are
gathered in formal public participation procedures have to be considered by the competent
authorities. The idea of the NWA inspires decentralisation of the water management
institutions. The catchment management agencies, once they are operational, at the regional
level shall foster public participation as the principle institution in water management.




Table 1: Provisions for public participation in the National Water Act: Requirement to consult: In all cases listed
above except in respect of sections 10 and 41 the Act requires that a Notice is published in the Gazette, and that
other appropriate steps are considered to bring the notice to the attention of interested persons [4].



The NWRS complements the requirements of the NWA. Public participation shall be
enhanced by the following instruments [7]:
•    education and awareness creation of water users and stakeholders,
•    the enabling of poorer, historically disadvantaged people to actively participate,
•    determination of the capacity of users and stakeholders,
•    continuous and consistent approach to public participation throughout the country,
•    encouragement of the establishment of representative stakeholder groups in each water
     management area,
•    guidelines for public participation in water-related issues,




                                                                                                               26
                                                             Stakeholder/citizen participation

•   adoption of these guidelines by all water management institutions.
Another initiative to promote public participation in the long term is the Water Educational
Programme. This Programme is dedicated to schools and has the following objectives.
•   raising the level of understanding of water issues - water literacy - throughout the
    country,
•   promoting resource conservation among the public,
•   integrating water-related education into the formal curricula of all educational
    institutions,
•   integrating environmental education into all departmental programmes,
•   establishing partnerships with all stakeholders in the water sector at national and
    international levels and developing collaborative networks.
Finally the NWRS is putting high emphasis on communication. The most important
information sources are the Three Year Strategic Plan and the Annual Report of the DWAF,
which are supplemented by public appearances of government officials, good public
relations and media coverage, and public events like the Water Week in March of each year.


4.4 Practical implementation of public participation in water management

In order to firm up the national policies and legislation in water management, the
Department for Water Affairs and Forestry (DWAF) issued “Generic public participation
guidelines” [6]. These guidelines aim at assisting government officials; they are not meant as
prescriptions. They contain the following main sections:
•   theory of public participation,
•   realities and motivation for public participation,
•   principles of public participation,
•   generic process and guidelines for implementation,
•   methods for public participation.
The DWAF conducted several case studies on public participation in practice. These case
studies served as crucial experiences for the development of the guidelines under the specific
South African conditions. They further illustrate methods and approaches applied under real
conditions, that give useful insights for practitioners. The DWAF case studies [6] related to
water management include:
•   The Orange River Development Project/Orange River Replanning Study (ORRS), Public
    participation was undertaken on large scale between 1995 and 1998.
•   The Tugela-Vaal Betterment Project gives an example of a Project Steering Committee
    as a means for stakeholder involvement.
•   The community Forestry Project in Wales, Bushbuckridge North gives an example of
    local community involvement by using PRA (Participatory Rural appraisal) methods.
•   An example for the establishment and functioning of a Catchment Management
    Authority is given in the Breede Water Management Area.




                                                                                           27
                                                               Stakeholder/citizen participation

•   The Case of the Licence Assessment Advisory Committees for Stream Flow Reduction
    Activities gives an example of a DWAF body that assists in the facilitation of co-
    operative governance and public participation.
Contact persons to the case studies are given in Annex I of the above mentioned guidelines.


4.5 Main actors in water management in South Africa

In addition to the government actors in water management described above, there is a variety
of other relevant actors involved in water resource management and water services
provision, which will be briefly outlined in the following sections.

Water boards and water-service providers
The primary activity of a water boards is the provision of water services to water-services
institutions. Water boards are established by notice of the Minister of Water and Forestry.
The activities of water boards might be extended to:
•   supplying water to consumers,
•   providing services, training and other support service to water-service providers,
•   providing catchment management service on behalf of the responsible authorities.
Water-service providers operate at the local level and are mostly organised at the district
level, where district councils perform a re-distributive function providing bulk service
function to the rural councils and collecting water-use levies from water users.
A different kind of institution for the provision of water are water-services committees. They
are charged with providing potable water to consumers within their service area, typically a
village. A committee is established only in cases where the water-service authority with
jurisdiction in that specific area is not able to efficiently provide water services effectively.

Water user associations (WUA)
Water user association are a further category of water management institutions foreseen in
the WMA. However, the scope of their objectives as well as their geographical extent will be
more limited than that of the CMAs. They are conceptualised as co-operative associations of
individual water users who wish to undertake water-related activities at the local level. They
are expected to be financially self-supporting from income derived from water use charges
payable by their members. It is furthermore foreseen that already existing institutions such as
irrigation boards, subterranean water control boards and water boards for stock watering
purposes need to be transformed into water user association or disestablished. It is expected
that more than 300 existing organisations will have to be transformed by the end of 2006.
Water user association may be established for any kind of water use, such as recreational
purposes, the management of scarce groundwater sources etc. The establishment of such an
association is initiated by a proposal brought forward by the Minister or submitted by
interested parties. The actual permission is granted only after a public consultation process
[9].

Agri SA
Agri SA is an autonomous body and represents the farmers’ viewpoints on agricultural
affairs. The Union is a powerful lobbying organisation and has direct access to the organs of
the State and to other authorities in the Republic. The Union is likely to be an important
actor in water management as its members manage large parts of privately owned land.




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                                                                   Stakeholder/citizen participation

Other actors
In addition to those organisations involved with the actual management of water resources,
there is a variety of other actors in the water sector. In many cases they fulfil a function of
bringing together water users, water-services providers and regulators, promoting
communication and mediation between these parties, providing for education and increased
awareness among water users. In some cases they are also involved in the actual
management of water resources.

Traditional leaders
Traditional tribal structures are institutional structures, mainly in rural areas, which are
recognised by but also subject to the Constitution. It is to be expected that these traditional
structures will play a mediating and supportive role in dealing with water management
issues, as they might help to address also the general public.

Water committees
Water committees are established at the local level, mainly in villages, and liaise between
water management organisations and other institutions involved in water management and
villages, communicate the needs of villagers and report back to these on decision made by
the authorities. Members of these committees are elected by the people of the village at
general village assemblies.

NGOs and community-based organisations
NGOs are playing an increasingly important role in individual river basins. Many have been
newly established in the wake of the democratisation process. As a consequence, their role in
the institutional set-up still needs to be clarified in many cases.

Fora
Fora are established at the river basin level and are considered as a pre-stage for CMAs as
they are best suited to respond to local water management issues on an ad-hoc basis. They
provide a forum for public consultation and integrating water-related activities of other non-
governmental and community-based organisations. Examples already exist in the multi-
sector forums initiated in four provinces with massive commercial afforestation [7].
Other groups with a clear interest in water management are financiers, manufacturers,
consultants as well as research institutions. The role, function and weight of these groups
still needs to be evaluated.

Actors in the Orange basin (South Africa)
According to a preliminary stakeholder analysis performed by NeWater project partners Dr.
Chris Dickens2, the following groups were identified as relevant for water management in
the Orange basin for the South African part. This list represents a first collection and will be
complemented during the course of the project.


Government and the public sector
•   DWAF Regional office Pretoria,
•   DWAF Regional office Bloemfontein


2
        Dr. Chris Dickens, Institute of Natural Resources, Scottsville, South Africa.




                                                                                                29
                                                            Stakeholder/citizen participation

•   Northern Cape Department of Tourism, Environment and Conservation,
•   Conservation agencies, provincial and national,
•   Catchment management authorities (Regional office - Bloemfontein),
•   Orange-Senqu commission.


Utility sector
•   Rand Water,
•   bulk water users - Bloem Water.


Water users
•   agricultural water users,
•   Water User Association (or old irrigation board/committee),
•   farmers/farmers unions.


Research
•   Water Research Commission,
•   University of Free State - Centre for Aquatic Environment.


Private sector
•   land use managers in catchments, Dept of Agriculture, Agricultural Research Council


Civil Society
•   land care project,
•   rural communities,
•   traditional communities,
•   water consumer fora,
•   catchment fora,
•   NGOs and civic organisations.


4.6 Further outlook

The legal provisions, the policy documents and the strategic guidelines on public
participation in water management in South Africa build a sound foundation for a holistic
approach to public participation in the future. Nevertheless Wester [51] highlighted some
critical points that are threatening the successful implementation of the policies described
above.




                                                                                          30
                                                               Stakeholder/citizen participation

A crucial role in river basin water management is given to the Catchment Management
Authorities (CMA). The CMA shall act as a mediator and a platform for expressing and
resolving problems and concerns that arise among the stakeholder of a certain river basin.
Major concerns for the functioning of the CMA are as follows:
•   Local communities and other citizen stakeholder groups are not aware of the CMA and
    the possibility to actively participate in decision making.
•   CMA-consultants do not speak the local language, facilitators who speak the language
    do not resolve these problems.
•   There is a deep cultural gap between the consultants and the local people, that leads to
    manifold misunderstanding, e.g. local people have a quite narrow perspective on
    immediate daily problems to resolve, like lack of drinking-water, while the consultants
    have a more future orientated broader vision of possible solutions.
As a consequence, a common understanding or even a common approach of the different
stakeholders is hardly to reach. The local communities are in addition very badly organised
in order to effectively participate in consultation processes on water. If these challenges, the
communication barrier and the organisational deficit of the local people are not met by
appropriated measures in the near future, the CMA and even the major public participation
provisions could possibly fail their objectives.


4.7 Networks

Prevalent actor networks
Currently, the water management network is changing in the wake of the new political
climate as well as the new set-up of institutions at the different levels of government. The
networks among actors at the different administrative levels differ in complexity and
intensity depending on issues addressed [7]. The formation of networks is a crucial step for
the promotion of a co-operative government approach as promoted by the NWRS, so as to
limit the central role the DWAF used to play in the past [7].
Traditionally, there have been strong links between agriculture, land use management and
water management. Agricultural needs were directly dictating the way water was managed
during the first half of the 20th century. In the following years, other sectors, as for example
the industrial sector, became more relevant and influential.
Network structures mainly emerged within these sectors, linking actors with same interests
and agendas in water management. In some sectors, such as agriculture and later power
generation these networks took on a very powerful role, strongly influencing water
management according to their own needs, which in some cases lead to monopolisation of
the access to water in the past.
This situation is even aggravated by the lack of co-ordination on the local level among small
farmers and rural communities. These groups are seldom organised and thus are hard to
reach by participative approaches and measures.

Scientific Community
The scientific community plays a significant role in the process of water management. One
of the main national organisations is the Water Research Commission. It acts as a knowledge
hub for the production, dissemination as well as application of knowledge on water resource
management. The commission was created to facilitate the exchange and collection of
knowledge from experts in academia, science councils, other research organisations and




                                                                                             31
                                                             Stakeholder/citizen participation

government at all three levels. The activities of the WRC are aligned to national water policy
objectives and the southern African context. WRC receives funding through levies charged
for the various water uses.
In addition, several national universities provide scientific advice as well as policy in the
context of water resource management. Researchers and scientists were in many instances
addressed as stakeholder in decision-making processes.
Finally, international research institutions, such as the International Water Management
Institute (IMWI) also constitute an important member of the science community in South
African water management. In many cases, these organisations address the international
dimensions of water resources in southern Africa.


4.8 Excursus: Lesotho - participation

Lesotho gained independence from the United Kingdom on October 4, 1966. In 1993, a
democratically elected government replaced the authoritarian military regimes of the 1980’s.
Yet democracy is still quite vulnerable as proved by the governance crisis in 1998.
Regarding the relationship between administration and private stakeholders and
organisations, the quality of governance can be described as scarce. Non-state actors in
Lesotho generally perceive government as too far away from the people, distrustful of civil
society and the private sector, used to manage development in a highly centralised manner
and not challenged to account to people for its performance[12].
Regardless of this situation, the government of Lesotho is well aware of these challenges.
The Poverty Reduction Strategy Paper 2003 lined out that in order to foster good governance
it is proposed to create and strengthen structures for the participation of the public in
governance[12].
In the field of water management direct legislation or policies in regard to public
participation are still lacking, as the Lesotho Water Resource Act of 1978 is still in force.
But in the broader context of environmental protection there have been more concrete steps
taken towards effective involvement of the public. As water management is a major
environmental concern, the policy guidelines and legislation for environment are surely also
valid for water management.
In 2001 two key documents were issued: The Lesotho National Environment Act [23] and
the Lesotho National Environmental Policy [31]. In both documents public participation
plays an indispensable role.
The Lesotho National Environmental Policy can be traced back to 1989, when a first
National Environmental Action Plan was formulated. The further policy developments lead
to the actual Environmental Policy, that contains an own chapter titled “Getting people
involved”.
This chapter is divided into five sections. Each section is dedicated to one core area for
enhanced stakeholder involvement. These areas are:
•   Gender Issues
•   Science and Technology
•   NGO and the Business Sector
•   Environmental Education and Public Awareness
•   Public Participation




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                                                               Stakeholder/citizen participation

While the first three areas address specific target groups and the options for their specific
needs, the last two areas are strategies that tackle the information and participation process in
the broader context.
The National Environment Act [23] contains concrete regulations for public information and
participation in the administrative processes. Provision on public participation can be found
in Part II – General Principles, Part III - Institutional Arrangements, Part IV - Environmental
Planning, Part V - Environment Impact Assessment, Audit and Monitoring and in Part XII -
Information, Education and Public Awareness.
The Provisions in detail:
In Part II of the Environmental Act lays down the principles for government activities. In
regard to public participation the following can be cited:


“PART II - GENERAL PRINCIPLES
3. (1) The Authority shall ensure that the principles of environmental management set out
   in subsection (2) are observed.
    (2) The principles of environmental management referred to in subsection (1) are as
    follows: [...]
        (f)   to publish data on environmental quality and natural resources;
        (g)   to encourage participation by the people of Lesotho in the development of
              policies, plans and processes for the management of the environment; [...]
        (m)   to ensure that environmental awareness is treated as an integral part of
              education at all levels; [...]
        (o)   to promote co-operation with other governments and relevant national,
              international and regional organisations and other bodies concerned with the
              protection of the environment. [...]
    (4) The court shall in exercising its jurisdiction, be guided by the following principles of
    sustainable development- [...]
        (d)   the principle of public participation in the development policies, plans and
              processes for the management of the environment; and [...]”


In Part III the arrangements for the Environmental Institutions are regulated. The promotion
of public awareness is one of the principal functions of the Lesotho Environment Authority.


“PART III - INSTITUTIONAL ARRANGEMENTS
Establishment of the Lesotho Environment Authority
9. (1) There is established a body to be known as the Lesotho Environment Authority.
Functions of the Authority
10. (1) The Authority shall- [...]
        (i)   promote public awareness through formal and non-formal education on
              environmental management issues; [...]”




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                                                                Stakeholder/citizen participation

Planning procedures are crucial for environmental changes, thus public participation is
extremely important in order to meet the goals of Integrated Water Resource Management.
In Part IV and V planning procedures are considered. Part IV defines strategic planning at
national and regional level. In this part public participation is limited to information. But the
provisions for EIA procedures are much more extensive regarding public participation. The
relevant sections of the Environmental Act are quoted below:


“PART IV - ENVIRONMENTAL PLANNING
25. (2) The National Environmental Action Plan shall –[...]
            (g)   be disseminated to the public; and [...]
26. (2) The District Environmental Action Plan shall-[...]
            (c)   be disseminated to the public; [...]”


“PART V - ENVIRONMENT IMPACT ASSESSMENT, AUDIT AND MONITORING
29. [...]
    (3) The environment impact statement shall be open for public inspection and may be
    inspected on payment of the prescribed fees by any person at a place and time to be
    determined by the Authority.
Review of Environmental impact statements
30. The Authority shall, on receipt of the environmental impact statement submitted to it in
    accordance with section 29 and in consultation with the Line Ministry study the
    environmental impact statement and if it deems it proper in its form and content shall-
            (a)   invite public comments on the environment impact statement in general;
            (b)   invite the comment of those persons who are most likely to be affected by the
                  proposed project by specifically drawing their attention to the environmental
                  impact statement;
            (c)   consider the environmental impact statement and all the comments made;
            (d)   require the holding of a public hearing for persons most likely to be affected
                  by the proposed project or activity if he deems it necessary;
            (e)   approve the project or activity after consultation with the relevant Line
                  Ministry if it is satisfied that the project or activity shall not result in
                  significant damage to the environment; [...]”


One basic precondition for public participation is a sound and comprehensive information
policy. Part XII is entirely dedicated to this fundamental need:


“PART XII - INFORMATION, EDUCATION AND PUBLIC AWARENESS
Freedom of access to environmental information
95. (1) A person who desires to obtain information relating to the implementation of this Act
    or any other information concerning the management of the environmental or natural
    resources shall subject to section 93(4) have access to that information.




                                                                                              34
                                                              Stakeholder/citizen participation

    (2) A person referred to in subsection (1) shall-
        (a)   apply to the Authority in writing indicating the type of information he desires
              to obtain; and
        (b)   pay a fee, which may be prescribed by the Minister.
    (3) The Authority shall grant access to the information referred in this section, on such
    terms and conditions, as the Authority may deem necessary.
    (4) Freedom of access to information pursuant to this section does not extend to
    proprietary information, which shall be treated by the Authority as confidential.
The Authority to collect, analyze and disseminate environmental information
96. (1) The Authority shall-
        (a)   gather information on the environment and natural resources on the existing
              data;
        (b)   subject to any other law, have access to any data collection on the
              environment and natural resources;
        (c)   analyze information relating to the environment and natural resources;
        (d)   disseminate information to public and private users;
        (e)   carry out public information and education campaigns in the field of
              environment;
        (f)   exchange information relating to environment with non-governmental
              organisations or any other regional and international organisations;
        (g)   co-ordinate the management of environmental information with the Line
              Ministry;
        (h)   advise the Council on existing information gaps and needs; or
        (i)   establish in consultation with Line Ministries, guidelines and principles for the
              gathering, processing and dissemination of environmental information.
    (2) The Authority shall every 5 years, publish a report on the state of the environment
    and environment management in Lesotho.
    (3) The Authority may, publish any other information it considers necessary for public
    education on the environment and other environmental issues.
Environmental education
97. The Authority shall, in consultation with the relevant Line Ministry, take appropriate
    measures for the integration of education on the environment in the school and
    university curriculum.”
Summarising these legal provisions on public participation, it can be stated that Lesotho’s
legislation fully meets international standards in public participation. Yet there is little
experience so far regarding how these provisions will be monitored in the practice of water
management. The Lesotho Highland Water Project already brought first insights in this
respect. But critical voices prevail in this project, therefore considerable remaining
challenges still persist.

Stakeholders in Water Management in Lesotho
In order to further investigate the challenges for public participation in water management in
the Orange-Senqu River Basin in Lesotho, Dr. Chris Dickens, partner in the NeWater




                                                                                            35
                                                               Stakeholder/citizen participation

project, developed the following preliminary stakeholder list. This list will be further
developed in course of the project.

Government and the public sector
•   Maluti Drakensberg Transfrontier Project - Lesotho section. The MDTP, funded by the
    World Bank through the Global Environment Facility, focuses on an area hundreds of
    square kilometres in extent, stretching from Golden Gate National Park in the eastern
                          s                                         s
    Free State to Qacha' Nek in the Eastern Cape. The project' main aims are the
    conservation of globally-significant biodiversity in the region and the promotion of
    nature-based tourism.
•   Catchment management authorities
•   Lesotho Highlands Development Authorithy (LHDA), responsible for all questions
    related with resettlement
•   Orange-Senqu commission, which deals with all shared-water issues relating to the
    Orange, originating in the Lesotho highlands and discharging into the Atlantic on the
    South Africa-Namibia border. Riparian states use the commission to anticipate and warn
    each other of potential flooding, to deal with drought, and to manage social, economic
    and environmental issues related to the river.
•   Lesotho Ministry of Natural Resources
•   Agricultural Research Division
•   Lesotho Department of Water Affairs
•   Environment Affairs (no names given)
•   Ministry of Agriculture, Co-operatives, and Land Reclamation, Dept of Agriculture,
    Director of Planning and Policy
•   Ministry of Home Affairs and Local Government
•   Ministry of Conservation, Forestry and Land-use planning

Utility sector
•   Rural Water Supply

Water users
•   Land use managers in catchments
•   Agrarian water users, irrigation managers/ irrigation committees and farmers/farmers
    unions,
•   Bulk water users, including electricity supplier, water utilities and water suppliers
•   Hydroelectric power
•   Water consumer fora, NGOs, Civic orgs

Research
•   University of Lesotho

Civil Society
•   conservation agencies
•   Rural communities, traditional communities




                                                                                            36
                                                                      Information management


5    Information management
The relevance of the availability of reliable data and information on all aspects of water
management for sound decision-making is explicitly highlighted in the NWRS [7].
Furthermore, the NWRS points out that information collected should reflect the integrated
nature of water resources, as insufficient information in relation to one aspect of water
management will hamper the development of adequate solutions in others.


5.1 Current situation

The DWAF-maintained monitoring systems collect some of the required data. However, the
collection systems are inconsistent and lack in spatial coverage, with some areas remaining
largely uncovered by monitoring and information collection systems [7]. In some cases the
quality of the data collected is not sufficient. There are furthermore deficits in the
dissemination of and the access to collected information resources. The co-ordinative
mechanism for data sharing among different national government departments, provincial
and local governments, water boards, private sector organisations and water users is limited.


5.2 Future strategy

The DWAF is the responsible institution for reviewing and revising all data acquisition,
monitoring and information procedures to ensure completeness and consistency of data
collection and storage. It is furthermore intended that CMAs, once they are fully operational,
will take over substantial responsibility for managing information relevant to their respective
WMA and where necessary also have access to information from neighbouring WMAs.
The overarching level for the collection and storage of data however is the national level. At
this level the data collected under the Water Services Act are intended to be linked with
information collected under the NWA.
The current challenges will be met by actively structuring monitoring data in consistent
functional components, improving efficiency and effectiveness through shared logistics and
infrastructure for data collection as well as the establishment of agreed standards and
guidelines. These steps will be promoted by new collaborative relationships to be established
between the DWAF and other relevant organisations fulfilling task in the monitoring of
water resources, such as
•   national, provincial and local government,
•   water management and water services institutions,
•   South African Weather Services,
•   private sector organisations
•   water users.
Urgent needs for immediate improvements have been identified in increasing the density of
national monitoring points for surface water flow to better assess the availability of water
throughout the country and support the full utilisation of available water to pre-empt
situations of acute water scarcity. In this context, the monitoring of operations at reservoirs,
transfer and irrigation schemes gains in importance as it is here where compliance with
regulations regarding the national water Reserve will have to be controlled and observed. It




                                                                                             37
                                                                      Information management

is expected that this will require the number of current monitoring sites to be tripled during
the next 10 to 15 years.
Groundwater monitoring is a further area of high priority, since knowledge about
groundwater resources is limited due to the private character of this resource according to the
water 1956 Water Act. The DWAF aims to undertake major efforts in providing background
and baseline information, with the CMAs providing monitoring services an major aquifers in
terms of trends in water levels and quality. Local users, using groundwater on the basis of
licenses are also expected to contribute to groundwater monitoring.
Another important field of application for monitoring data and information is the process of
granting water use rights under the Water Use Authorisation and Registration Management
System (WARMS). Extensive data is needed for each step of the registration process, such
as the identification of the water user, the characterisation of the location, nature and extent
of the use, the licensing process and also invoicing. The WARMS system is fully operational
as of 2003 and will be integrated in national databases within the coming years.
The area of disaster management is a further key application of environmental monitoring
data. Municipalities are required by the NWA to include 100 year flood forecasts on their
plans, all water management institutions are required to make their data available in order to
help with predicting water-related events. It is expected that new approaches towards
extending and linking monitoring systems and the improvement of information management
will contribute to the rapid availability of data on flood events. The DWAF will provide the
main impulses here and also be responsible for analysing and distributing respective data to
the affected communities. In performing this task the DWAF intends to work closely with
the National Disaster Management Centre, the South African Weather Services and the
Agricultural Research Council; institutions collecting rainfall data. In the context of these
efforts, the DWAF also aims to produce a national disaster vulnerability atlas combining all
relevant information needed to support decisions in the case of emergencies and disaster
situations [7].




                                                                                             38
                                                                                    Conclusion



6   Conclusion

6.1 Policy Process


Previous management approach
South African water policy before the recent changes in the overall political climate could be
characterised by the following factors:
•   The central government was playing a dominant role. Embodied by the Department of
    Water Affairs and Forestry, national government was directly or indirectly controlling all
    aspects of water management in the country. Affairs at the provincial level were mostly
    handled by the regional representations of the DWAF.
•   Decision-making in water affairs was highly technocratic; participation in decision-
    making was limited to a number of powerful ‘stakeholders’, such as lobbying
    organisations of agriculture and industry. There were no provisions and no mechanisms
    for involving the general public.
•   Water policy was largely dominated by agricultural needs for irrigated land, with
    industrial interests gaining in relevance in the period after 1956.
•   Solutions sought for solving the most pressing issues in South African water policy were
    mostly of technical nature, i.e. major infrastructure developments. The preference for
    such large projects could be explained by their symbolic value as ‘development
    monuments’, the assumption that large projects will also lead to benefits for a broad base
    of beneficiaries, the attraction of vested interest from outside the country and from
    foreign investors as well as the tendency towards lacking efficiency assessments.
•   Infrastructure projects were for the most part financed through subsidisation by the state,
    and thus the tax payers, rather than cost recovery from water users or polluters.
This water management paradigm cannot be considered as a static state but has been
transformed during the past decades, resulting in the current water management strategy as
reflected by the recent legislation and strategy documents of the past years.

Current water management strategy
In a 2004 statement on occasion of the publication of the first edition of the NWRS, the
Minister for Water Affairs and Forestry provided an overview of the main elements of the
future South African water resources strategy.
•   Water resources management will be brought to the local level. With the establishment
    of 19 catchment management areas and the institutionalisation of water management at
    that level through the catchment management agencies, an approach which is tailored to
    the local situation is to be achieved.
•   The approach is issue-based, acknowledging the interrelationships between the different
    areas of water management rather than catering to the needs of individual economic
    actors. As regards one of the most important issues in southern African water resources
    management, water scarcity, a water deficit is expected for ten of the 19 catchment
    management areas. The main tool now propagated by the DWAF to meet this challenge
    is to improve water use efficiency. There is a clear endorsement of demand-side
    approaches, such as the promotion of a more effective use of water [4].




                                                                                            39
                                                                                   Conclusion

•   The approach towards large scale infrastructure is differentiated. The construction of
    new large scale infrastructure is considered necessary, particularly to meet the challenge
    of water scarcity. However, there is also a clear understanding that infrastructure
    development is costly and that infrastructure development alone will not help to meet all
    water scarcity challenges.
•   The cost recovery principle is introduced to many areas of water management including
    the promoting of water trading as well as the reallocation of water use through
    compulsory licensing.
•   Stakeholder participation is gaining in relevance, particularly with regard to the
    implementation process of the new national water legislation but also in assessment
    exercises of major infrastructure developments. The dialogue with relevant stakeholder
    groups is actively sought after by decision-makers.
These developments can be explained by a number of factors, trends and changes during the
past years.

Factors explaining changes
These factors and trends can largely be put into three categories: economic imperatives,
international trends, and ideological changes.
With the democratisation of the country, the need emerged for eliminating injustice and
social disparities, particularly with regard to inequalities in the access to resources. Water
constitutes a primary common good and therefore efforts very soon concentrated on
providing and equitable access to this important resource. From a more analytical
perspective the political objectives for water management, while deeply rooted in the
Southern African water management discussion, have gained new momentum with the
development of the Freedom Charter and the establishment of the new Constitution. Here as
in the Bill of Rights, the right of access to sufficient water is explicitly stated. The
fundamental change became necessary to the South African water law going back to a
mindset and strategy of conquest, expansion and exploitation of natural resources. The
colonialist aimed to transfer the rules and regulations from water abundant Europe to the
water-scarce and highly unpredictable environment of southern Africa. In addition, they
designed water legislation in a way that the rights and benefits of the ruling, land-owning
class would be maximised and secured. Over time this resulted in a situation where the
majority of the South African people did not only have no access to land but hardly any safe
access to clean water resources. As a consequence, the democratisation process intrinsically
also required the provision of this basic right to the South African people.
In addition, there was a heightened awareness for the consequences of an increased
exploitation of water resources in the wake of the struggle to meet ever rising demands in all
South African catchments. The intensification of associated impacts on water quality
certainly added to this development [19]. These impulses originating at the national level
were even intensified by developments in the international sphere in the context of major
water transfer programs, such as in the case of the Orange-Senqu basin [7,8]. Furthermore,
the emergence of the concept of integrated water resource management, water conservation,
demand management and multi-sector consultative decision-making at the international level
promoted and initiated national approaches and were reflected by South African policies.
Economic imperatives were created by the high cost of past large-scale infrastructure
projects. Costs outweighed perceived benefits in many cases, such as the ORDP,
necessitating the re-direction of projects and the re-assessment of strategic avenues taken.




                                                                                           40
                                                                                    Conclusion

Lesotho
Similar reflective processes can be detected in the context of the LHWP. While project
implementation is still following the old management paradigm of large-scale infrastructure
construction, still there is an increased awareness for the problems evolving in the context of
the projects. An adaptation of the strategy seems hard to implement, but other management
strategies might help to limit and even mitigate the negative impacts.
The situation in Lesotho is hard to assess due to the lack of information on governance,
institutions and participation. The first steps undertaken at the national level towards a more
integrated water resources management have already been codified in environmental
legislation. Whether or not these will be translated into the respective water management
strategies remains to be seen. However, such a development in Lesotho seems to be
hampered by a number of factors:
•   lack of capacity and awareness for water issues among government officials,
•   lack of co-ordination among different branches of government with a stake in water
    management,
•   lack of necessary financial and organisational resources,
•   missing consistent and supportive policy framework,
•   deficits in the involvement of stakeholders in water resources management decision-
    making processes and a lack of broad representations of all stakes in water management,
•   strong influence of large, international infrastructure projects.


6.2 Outlook

In the context of the NeWater project and the formulated objectives, the Orange-Senqu river
basin provides a very useful case to investigate a large-scale transition process in water
management. Triggered by the political change in South Africa after 1994, the water
management regime in the basin is currently subject to far-reaching changes, the outcomes
and results of which will only become visible over the next years and decades. Particularly
interesting in this context are the following aspects:
•   the consideration and promotion of policies for meeting the challenge of water scarcity
    through demand side management and increased water efficiency,
•   the realisation of an equal access to water resources in the spirit of the new political
    paradigm in South Africa,
•   dealing with the implications and consequences of large-scale infrastructure projects,
•   the transboundary dimension of water management in the Orange-Senqu basin,
    considering the different status of water policy in the individual riparian countries.
Further investigation on the last point will be provided in the context of work package 1.3 of
the NeWater project on transboundary regimes.
In the case of Lesotho, a better information base will help to better assess the challenges in
water management in this specific context. This will not only help in better identifying
potential gap in paving the way to more sustainable water management practices, but also
help to better place Lesotho in the framework of transboundary water management as an
equal partner.




                                                                                             41
                                                                        List of references



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52. World Bank (2004): Lesotho at a glance, download at http://www.worldbank.org/cgi-
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53. World Commission on Dams (2000). Orange River Development Project, South Africa,
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