CONSTITUTION OF THE ZONDERENDRIVIER WATER USER ASSOCIATION
1 NAME OF THE ASSOCIATION
The name of the association is the Zonderendrivier Water User Association. (Hereinafter referred to as “the Association”.)
2 APPLICATION OF THE NATIONAL WATER ACT OF 1998 TO THE CONSTITUTION
This constitution is subject to Chapter 8 of the National Water Act of 1998 (hereafter referred to as the Act) and Schedule 4 to the Act.
3 OBJECTS OF THE ASSOCIATION
3.1 The objects of the Association are to, within its operational area,
3.1.1 Control, distribute and monitor raw water resources in the Sonderend River on behalf of persons as stated in Section 22 (1) of the Act.
3.1.2 Manage the release of bulk raw water from the Theewaterskloof Dam.
3.1.3 Manage duties in terms of Section 115 and Section 63 of the Act delegated by responsible Authorities.
3.1.4 See to it that water is generally used in terms of Section 22 (1) of the Act.
3.1.5 To distribute water without disturbing the environment.
3.2 The operational area:
3.2.1 The operational area is situated in the Breë River Water Management Area Nr. 18 in the Western Cape. The watersources under the management of the Association start where the Sonderend river rise beneath the Theewaterskloof Dam and stretch along both riverbanks to where it flows into the Breë river.
3.2.2 The operational area includes:
(a) all properties that held water user rights out of watersources and/or waterworks under the management of the Association during the transition from an Irrigation Board to a Water User Association or which received such water user rights by a responsible authority after the transition.
(b) any area not included in the above mentioned area, but which area was put under the management of the Association by a responsible authority in order to exercise functions on behalf of the responsible authority.
3.2.3 The operational area of the Association will be divided in sub-areas as set out in Annexure 3 of this constitution.
The main operational area of the Association will be divided in sub-areas as set out in Annexures 1 and 3 of this constitution.
3.2.3.1 Sub Area A – Downstream from State Waterworks (Item 3.1.2 ) up to and including Greyton.
3.2.3.2 Sub Area B – Downstream from Greyton up to and including Riviersonderend.
3.2.3.2 Sub Area c – Downstream from Riviersonderend up till the confluence with the Breede river.
4 PRINCIPAL FUNCTIONS OF THE ZONDERENDRIVIER WATER USER ASSOCIATION
The principal functions to be performed by the Association in its area of operation are:
4.1 To prevent water from any water resource being wasted.
4.2 to protect water resources.
4.3 to prevent any unlawful water use.
4.4 to remove ar arrange to remove any obstruction unlawfully placed in a watercourse.
4.5 To prevent any unlawful act likely to reduce the quality of water in any water resource.
4.6 To exercise general supervision over the water resources.
4.7 To regulate the flow of any watercourse by:
– cleaning its canal;
– reducing the risk of damage to the land in the event of floods;
– changing a watercourse back to its previous course where it has been altered through natural causes.
4.8 To investigate and record:
– the quantity of water at different levels of low in a watercourse;
– the times when; and the places where water may be used by any person entitled to use water form a water resource.
4.9 To construct, purchase or otherwise acquire, control, operate and maintain waterworks considered to be necessary for:
– draining land; and
– supplying water to land for irrigation or other purposes.
4.10 To temporarily terminate or decrease the supply of water from a waterworks and/or resource under the management of the Association for execution of any of its functions or for any other reason which might be necessary for the proper management and protection of the waterworks and/or watersource.
4.11 To supervise and regulate the distribution and use of water form a water resource according to the relevant water use entitlements, by erecting and maintaining devices for:
– measuring and dividing; or
– controlling the diversion of the flow of water.
4.12 To handle registrations, on behalf of its members, which might be required according to the Act.
4.13 To assist its members with any application for licenses according to Section 25(1) and 40 for renewal or new water user rights as required by the Act.
5 ANCILLARY FUNCTIONS OF THE ASSOCIATION
5.1 The Association may perform functions other than its principal functions only if it is not likely –
5.1.1 to limit the Association’s capacity to perform its principal functions; and
5.1.2 to be to the financial prejudice of itself or its members
5.2 Other functions of the Association may include –
5.2.1 Providing management services, training and other support services to
– Water services institutions; and
– Rural communities
5.2.2 Providing catchment management services to or on behalf of responsible authorities.
5.2.3 The execution of such functions and duties assigned or delegated to the Association by the responsibility authority in accordance to the Act.
6 FOUNDING MEMBERS
6.1 The founding members of the Association as set out in Annexure 2 of this constitution are the current elected committee members of the Zonderendrivier Irrigation Board, which will, in accordance to Art. 98(4) of the Act, be changed to a Water User Association and who has been authorized by members of the mentioned Board to act on their behalf at the transforming of the mentioned Board to a Association.
6.2 The founding members will, for purposes of arranging the first election of members of the Management Committee, be considered to be the Management Committee of the Association with powers and duties limited to arranging the election in accordance with this constitution.
7 MEMBERSHIP OF THE ASSOCIATION
7.1 Any person who has, in terms of the regulations of Article 22(1) of the Act, including sub-article (1)(a)(I), a right of use of water supplied to him out of a waterworks or water resource under the management of the Association, may become a member of the Association
7.2 The first members of the Association are :
7.2.1 The persons whose names appear in Annexure 3 of this constitution. They are the current members of the Zonderendrivier Irrigation Board who receive their water from the distribution works of the Association and their membership to the Association are automatic.
7.2.2 Any other person(s) who has a legal right of use on water in the operational area of the Association en whose written application for membership has been approved by the Management Committee.
7.3 Application for new membership of the Association must be addressed to the Management Committee which must, at a meeting of the Committee, consider an application and approve it unless there is good reason to refuse it.
7.4 An association must allow a person to become a member of the Association of directed by the Minister to do so.
7.5. A member may only resign as a member of the Association with the approval of the Management Committee, which may not unreasonably withhold its approval.
7.6 Membership of the Association end when the member’s right of use on water expire.
7.7 The termination of a members membership with the Association does not automatically end his responsibility to pay any outstanding monies payable to the Association or any part of capital, loans and other costs with regard to the Association’s infrastructure that has been allocated to the member before or on the date that his / her membership ended. The relevant commitments will only end when the respective member has fully settled his /her commitments towards the Association or alternatively, supplied sufficient security that he/she will comply with their commitments, as determined by the Management Board.
7.8 Fees / levies set by the Association for agricultural water usage and interest payable thereon, are a liability against the ground it is levied upon and a person that becomes the owner of that ground is responsible for such fees/levies that may be outstanding at the time that he/she became the owner, including any interest that may be payable or become payable at a later stage.
7.9 Any member that wants to transfer / terminate his / her user rights on water in any manner, must inform the Management Board in writing and acquire the Management Board’s written recommendation for approval of such transfer or termination which recommendation must be included in the application for approval of the transfer or termination of the said rights in the submission to the relevant Responsible Authority.
7.10 The successors in right and title of the user rights on water from members of the Association will also automatically be members of the Association.
8 REGISTER OF MEMBERS
All members must communicate their addresses from time to time to the person acting as secretary of the Association, who must keep a register of names of members and of their addresses.
9 RIGHTS OF MEMBERS
9.1 Membership of the Association does not give any member a right to any of the moneys, property or assets of the Association, but only gives members the privileges of membership, subject to such charges and reasonable restrictions as are imposed by the Management Committee from time to time.
9.2 A member whose application for membership has been approved is bound by the constitution and rules of the association which are then in force or as they are subsequently amended.
10 LIABILITY OF MEMBERS AND SERVITUDE LIABILITIES
10.1 The liability of members is limited to the amount of unpaid charges and interest thereon owing by them to the Association, but with due allowance for the regulations of Article 60 of the Act concerning payments due in respect of the land.
10.2 If any waterworks of the Association cross or overstep the property of any member, the Association will keep all servitude rights which will be necessary for the proper exercising of its functions en will the regulations of the Act and more in particular articles 126, 127 and 128 thereof be enforce.
11 QUALIFICATION OF CANDIDATES FOR MEMBERSHIP OF MANAGEMENT COMMITTEE
Any member of the Association is, subject to disqualifications contemplated in Schedule 4 to the Act and whose payments of amounts due to the Association are not more the 180 days in arrear, eligible of election as a member of the Management Committee. If the Association’s area of operation is divided into sub-areas, a member will only be eligible for election as a member of the Management Committee for the Sub-area in which that member resides.
12 NOMINATION OF AND VOTING FOR MEMBERS OF MANAGEMENT COMMITTEE
Any person whose name is on the voters list of the Association, and does not owe the Association any moneys (including interest) for more than 180 days, may nominate candidates for election as members of the Management Committee and may vote at an election of member of the Committee. A person whose name appears on a voters list prepared for a sub-area of the Association’s area of operation, will be entitled to nominate candidates and to vote only in elections for that sub-area.
13 MEMBERSHIP OF MANAGEMENT COMMITTEE
13.1 The Management Committee of the Association will consist of 17(seventeen) members:
Sub-districts 1 – 3 9 (3 of each district)
Genadendal farmers 1
Individual users 2
Municipalities 1
Overberg Water 1
Sport and Recreation 1
Small farmers 2
17
13.1.1 Nine representatives elected by members as per the voters’ list of the Association on the basis of three representatives as per sub district 1, 2, and 3 respectively as set out in item 3.2.3 of the constitution.
13.1.2 One representative appointed by Genadendal Farmers.
13.1.3 Two persons appointed by Individual Users who are not members of the Association in terms of item 7 of the Constitution, but who have an interest in the Association’s supplying of water.
13.1.4 One representative appointed by the local Municipalities who has an interest in the use of water which is supplied out of a watersource under the management of the Association.
13.1.5 One representative appointed by Overberg Water or its Title that has an interest in the use of water which is supplied form a watersource under the management of the Association.
13.1.6 One representative appointed by organised users of water for recreational purposes that has an interest in the use of water which is supplied from a watersource under the management of the Association.
13.1.7 Two representatives appointed by local Small Farmers that has an interest or reasonable chance to obtain an interest in the water supplied by the Association. The term “Small Farmer” in this item will mean a person:
(a) that comes from a previously disadvantaged community and
(b) that farms or will farm with water on a small scale.
13.2
13.2.1 Nominations referred to in item 13.1.7 can only take place if and when such a interest group exist.
13.2.2 The nominations referred to in items 13.1.2 to 13.1.7 may be precede by an internal election if required by the interest group.
13.3
13.3.1 Members of the Management Committee will, subject to the disqualification contemplated in item 11 of the Constitution , be elected for a fixed term of three years.
The first election will take place as follows –
(a) One-third of the members elected who stand highest on the polls will hold office for a period of three years;
(b) One-third of the members elected who stand nest highest on the poll will hold office for a period of two years;
(c) The remaining members elected will hold office for a period of one year.
13.4 Members will hold office for a period of one year subject to the nomination for a further period of one year each limited to a maximum of three consecutive years.
13.5 If a vacancy occurs on the Management Committee, the vacancy must be filled according to this item, provided that the member must be elected for a period equal to the remainder of the period of which the member who has vacated the office would otherwise have continued in office.
13.6 At least (14) fourteen days’ notice of an election must be given to all members of the sub-district or interest group of the Association.
13.7 With any election of a person of a person to serve on the Management Committee, a member that is a registered voter in a sub region in which he/she is registered must vote for as many candidates as there is vacancies in person, or appoint someone by proxy as per procedure described in item 12 of the Constitution. The document whereby a procurator is appointed, must be drawn up in the manner prescribed by the Management Committee which may at their own judgement decide on further regulations / rules regarding the procedure to be followed for the bringing out of a vote by a procurater and the number of proxy’s that may be held by a person.
13.8 If, in any case during the election of members of the Management Committee
13.8.1 two or more candidates have received an equal number of votes; or
13.8.2 no poll is required because the nominations received were not greater than the number of members to be elected, the respective periods of office of the members will be determined by lot under supervision of the chief executive official
13.9 If more people from an interest group are nominated than there are vacancies for on the Management Committee for that particular interest group that must be filled by nomination, the nominated member will be determined by lot under supervision of the presiding officer or in his absence, under the supervision of the chief executive officer.
13.10 The Association supports the requirements as set out in Art 2 of the Act with reference to promoting and implementing race- and gender representation as far as the Association is able to.
13.11 If the composition of the Management Committee as set out in item 13.1, after an election and appointment process do not include representation of a certain community, race and / or gender on the Committee, the Chairman of the Committee must request all members of a committee to nominate members of such a community, race and or gender that agrees thereto and that do not necessarily have to be members of the Association of water users, within a period of 14 days to serve on the relevant Management Committee with the understanding that they must have an interest in the water usage in the operational area. The Chairman must, after the expiry of the nomination period, appoint one of the nominees out of each interest group to serve on the Committee for a period of one year, by lot.
13.12 All members of the Management Committee can participate fully in decisions about water management and the financing thereof. Only members that have a vested interest in a particular waterworks, may participate and vote in decision regarding that particular waterworks. The Chairman of the management Committee will decide if a member may vote on a certain affair.
14 APPOINTMENT OF CHAIRPERSON AND DEPUTY CHAIRPERSON
14.1 After the election of the Management Committee, the members of that Committee must elect a chairperson and deputy chairperson of the Association from amongst their members. The Management committee may appoint any person to chair the proceedings for the purpose.
14.2 The chairperson and deputy chairperson hold office for a period of 12 (twelve) months form the date of their election and may be re-elected.
14.3 When the period of office of a chairperson or deputy chairperson expires, that person will, provided that he or she remains a member of the Association, remain in office until the next meeting of the Management Committee.
14.4 A new chairperson and deputy chairperson of the Management Committee will be elected annually. Should any of these offices vacate before the term expires, the office must be filled immediately according to the procedure set out in this item.
15 VOTER’S LIST
15.1 The founding members of the Association must select a person to prepare a voters list for the first election of members of the Management Committee. The voters’ list must show –
15.1.1 the names of all members included in Annexure 3 of this constitution and, where appropriate, the name of a member’s accredited representative;
15.1.2 particulars of each member’s entitlement to water use; and
15.1.3 the number of votes a member is entitled to.
15.2 If the Association’s area of operation is divided into sub-areas, the voters’ list must also be divided into sub areas and the particulars referred to in sub item 15.1 must be shown under the respective sub areas.
15.3 The number of votes will be determined on the basis of one vote for every 5 (five) hectares or part of 10 (ten) hectares of land that can be irrigated in terms of a member’s entitlement, provided that no member will be awarded more than 15 (fifteen) votes.
15.4 Proposed members will have one vote.
15.5 If the entitlement to use water in the name of a natural person, the holder must nominate an accredited representative whose name must appear on the voters’ list and who may exercise the vote.
15.6 If the entitlement is in the name of two or more persons they must designate one of their numbers to represent them and that person’s name must appear on the votes’ list and he or she may exercise the vote.
15.7 The voters’ list must annually be revised by the Management Committee and also whenever there is an amendment to the Association’s area of operation.
16 APPOINTMENT OF EMPLOYEES
16.1 The Management Committee may employ such persons as it considers necessary to perform the Association’s functions under this constitution.
16.2 The appointment of employees or any change in their conditions of service must be approved by resolution of the Management Committee.
16.3 All employees of the Association will remain in office despite any change in the composition and membership of the Management Committee.
17 RAISING OF LOANS
17.1 The Management committee may raise by way of loans, including bank overdrafts, any funds required by it for the purpose of carrying out any of its functions under this constitution or the Act.
17.2 Whenever the Management committee proposes to raise a loan, it must give notice in writing of its intention, setting out details of the proposal. The notice must be given to every member of the Association not less than 21 (twenty-one) days before the date of the meeting of the Committee at which the proposal will be considered.
17.3 No loan may be raised without a resolution of the Management committee passed at a meeting at which not less that two-thirds of the members of the Committee are present.
18 CHARGES AND THE RECOVERY OF CHARGES
18.1 For the purpose of defraying any expenditure that the Management committee has lawfully incurred or may lawfully incur in carrying out its functions and duties it may annually assess charges on members according to the pricing strategy for water use set by the Minister. The levy must take the Management Committee for any sub region’s budget for the financing of the operational, maintenance and upgrading expenses in respect of the waterworks under the management and control of that committee into account and will the fee be based accordingly on a differential basis.
18.2 The Management Committee may recover the charges assessed from either –
(a) the owners of the land concerned; or
(b) any person to whom water is supplied on the land.
18.3 Whenever the Management committee has assessed a charge, the committee must prepare an assessment roll setting forth –
(a) the name of each member liable to pay charges;
(b) a description of the piece of land, which may be a specially delineated area, in respect of which the charge is assessed;
(c) the quantity of water or abstraction time period to which the member is entitled;
(d) the amount of the charge assessed;
(e) the date or dates on which payment is due and the amount due on each date;
(f) the rate of interest payable on non-payment and the effective date of interest.
18.4 A copy of the assessment roll must lie open for inspection in the office of the Association at all reasonable times by any member of the Association.
18.5 If any monies, including interest are payable to the Association, for a period of more that 90 days, and after giving proper notice the Association may, in addition to the powers allocated to it in accordance with art. 59(3) of the Act, and without any further notice to the debtor, apply for a summons in a magistrate’s office which will then have jurisdiction, no matter the size of the outstanding amount and the debtor will then be accountable for all commitments and legal cost, including attorney and client costs.
19 ANNUAL REPORT
The Management Committee must, as soon as possible, within 6 (six) months after the end of the Association’s financial year, convene a general meeting of members and must at the meeting –
19.1 table an audited financial statement of the Association’s accounts for the preceding financial year, including full particulars of any remuneration paid bye the Association to members of the Management Committee and employees of the Association; and
19.2 give an account to the members of its activities during the year.
20 WINDING UP
20.1 The Association may be dissolved by a resolution passed at a special general meeting held for that purpose, provided that –
20.1.1 the resolution is passed by a majority of two-thirds of the members present and entitled to vote at the meeting; and
20.1.2 the resolution is conformed at a further special general meeting held not less than four weeks after the preceding special general meeting by a majority vote of members entitled to vote thereon.
20.2 A meeting passing a resolution referred to in sub item 20.1.1 of this constitution may also pass resolutions by a majority vote for –
20.2.1 the appointment of a liquidator; and
20.2.2 the disposal of surplus funds and assets of the Association after winding up and after the payment of all debts and obligations of the Association, provided that any surplus assets may only be transferred to an Association or institution with objects similar to those of the Association, or to the Minister.
21 AMENDMENT TO THE CONSTITUTION
21.1 Amendments can be made to this constitution by members of the Association with approval of the Minister, provided that:
21.1.1 At a special members meeting convened for this purpose, a two-thirds majority of the members present at the meeting and at least 50% of the total members of the Association as per the latest voters roll must be in favor of the amendment indicated by way of a individual vote.
21.1.2 A notice containing the written proposed amendments is mailed to all the members at least 21 days before the date of the abovementioned meeting.
21.2 Only the proposed amendment of which written notice has been given and amendments thereon can be discussed and voted on at the said special meeting.
ANNEXURES TO THIS CONSTITUTION
Annexure 1 Plan of Operational Area
Annexure 2 List of Founding Members of the Association
Annexure 3 List of First Members of the Association
Annexure 4 Appendix 4