OVERVIEW OF THE BILL
The National Water Amendment Bill (“Amendment Bill”), published for comment on 17 November 2023, proposes a range of significant changes to the National Water Act, 36 of 1998, as amended (“Act”). The Amendment Bill forms part of government’s broader legislative push to address water pollution, improve water resource management, and strengthen enforcement powers. It introduces new definitions, reinforces ministerial oversight, clarifies institutional roles, and enhances mechanisms for accountability, particularly in response to the ongoing sewage crisis affecting many municipalities.
The 2023 Green Drop Report revealed that over 60% of South Africa’s wastewater systems are in a poor or critical state. With pollution threatening rivers, groundwater, and public health, urgent action has become a legislative and political priority.
Among the most notable features of the Amendment Bill are clauses 28 and 29, which introduce heightened criminal liability for directors and municipal managers where institutions fail to comply with key provisions. The Amendment Bill reflects growing pressure—from Parliament, civil society, and oversight bodies—to ensure personal accountability for public and private sector actors whose negligence contributes to the degradation of water resources. Although Its implementation timeline is uncertain, progress on the Amendment Bill is anticipated, pending public hearings and parliamentary deliberation.
KEY AMENDMENTS
Clause 28 updates section 151, escalating the fines and introducing stricter sentencing tiers for specific offences. It also distinguishes between first and repeat offences, setting fines of up to R10 million and jail terms of up to 10 years.
Clause 29 inserts a new Section 156A into the Act, the section primarily imposes personal criminal liability on municipal managers and company directors where the municipality or business entity has committed an offence under Section 151, such as –
- using water otherwise than permitted in terms of the Act;
- failing to provide access to any books, accounts, documents or assets when required to do so under the Act; and
- failing to comply with conditions attached to a water use licence.
The new section 156A also allows courts to order restitution upon conviction, including –
- recovery of damages for rehabilitation or prevention;
- determination and recovery of profits arising from unlawful conduct; and
- recovery of reasonable investigation and prosecution costs.
POLICY CONTEXT AND REAL-WORLD IMPLICATIONS
The provisions come amid growing public outrage over untreated sewage polluting major watercourses, with mounting pressure on national and local government to act. The 2023 Green Drop Report confirmed that a majority of the country’s wastewater treatment systems are critically dysfunctional.
Deputy Minister Sello Seitlholo has publicly warned municipal officials that the time for talking is over, stating that individual accountability by way of jail or fines are now firmly on the table for non-compliance with pollution laws. His remarks reflect increasing frustration with the inability of municipalities to manage basic sanitation infrastructure and the lack of individual accountability for those in charge of municipalities committing water pollution offences.
However, critics argue that such criminalisation may shift attention away from systemic failures in funding, skills retention, and governance. Academics have cautioned that imprisoning municipal managers won’t solve the crisis. They note that most managers operate under circumstances of extreme institutional dysfunction and ageing infrastructure, lacking both authority and resources to comply.
They argue for a holistic response, one that combines legal accountability with national support, dedicated funding, and structural reform, such as removing bureaucratic red tape to allow for private sector solutions to address pollution problems the municipalities cannot fix themselves. As such, while the Amendment Bill’s intent is commendable, its effectiveness will depend on whether enforcement is paired with enabling conditions for municipal recovery and performance.
PROS
- Sends a clear political and legal message that water pollution will not be tolerated.
- Introduces restorative remedies by allowing recovery of environmental harm costs and unlawfully obtained benefits.
- Strengthens accountability in leadership positions, especially where deliberate inaction or negligence occurs.
- Aligns with public sentiment that environmental failures must result in real consequences.
CONS
- Risk of over-criminalisation: individuals may face prosecution despite lacking real control or funding authority.
- Fails to account for systemic issues like institutional collapse, poor maintenance budgets, or skills shortages.
- May disincentivise competent professionals from entering municipal service roles due to personal liability risk.
- Focuses on punitive enforcement without matching legislative reforms for infrastructure funding or technical support.
- Critics argue that the criminal justice system is being used as a substitute for failing state support mechanisms.
CONCLUSION
The Amendment Bill signals a more aggressive enforcement stance from government and Parliament. However, for meaningful progress in restoring South Africa’s water systems, legal reform must be coupled with practical support for municipalities, not just punishment. The success of these amendments will ultimately depend not on the text of the law, but on the state’s ability to act, resource, and oversee implementation effectively.
