Constitution - Schedual 5

LOWER SUNDAYS RIVER WATER USER ASSOCIATION

Sections 91(1)(f), 93(1) and 94(2)

NAME OF ASSOCIATION

1.    The name of the Association is Lower Sundays River Water User Association (L.S.R.W.U.A.) (hereinafter referred to as "the Association").

APPLICATION OF THE NATIONAL WATER ACT OF 1998 (Act no. 36 of 1998) TO THIS CONSTITUTION

2.    This constitution is subject to the National Water Act, 1998 (Act 36 of 1998), hereafter referred to as the Act, with special reference to Chapter 8, Schedule 3 and revised Schedules 4 and 5 of the Act.

AREA OF OPERATION OF THE ASSOCIATION

3    The area of operation of the Association includes all properties as indicated in Annexure 3 attached to this Constitution and are in respect of which any person is entitled to use water by virtue of entitlements in terms of Section 22(1) of the Act, which is supplied from;

3.1    Darlington Dam

3.2    The Sundays River downstream of Darlington Dam to Korhaans Weir

3.3    All canals, siphons and tunnels leading from there to the final discharge canal just below Barclay Bridge including Scheepersvlakte Dam and linking all the properties as indicated in Annexure 3.

3.4    The area of operation of the Association is situated within the Fish to Tsitsikamma Water Management Area (WMA 12) entirely within the Eastern Cape Province.

OBJECTS OF THE ASSOCIATION

4.1    To regulate the distribution of water in an efficient, fair an equitable manner to all the users within the area of jurisdiction of the Association in accordance with water use authorisations as provided for in Section 22(1) of the Act.

4.2    To assist and build capacity of users to utilise water efficiently and to provide advise and guidance for the development of all water users.

4.3    To assist previously disadvantaged communities to gain access to water.

4.4    To maintain the infrastructure for the efficient distribution of water with minimum losses/waste.

4.5    To assist other organisations providing water related services to communities and to assist such organisations associated with the Water User Association in their objectives.

4.6    To promote environmental issues within the area of jurisdiction of the Association.


THE PRINCIPAL FUNCTIONS OF THE ASSOCIATION

5    The principal functions to be performed by the Association in its area of operation are;

5.1    To prevent the wasteful use of water and to adequately maintain waterworks to minimise any water waste.

5.2    To protect water resources and to exercise general control and supervision over the water resources and waterworks.

5.3    To prevent any unlawful water use and to remove any obstruction unlawfully placed in a watercourse or waterwork.

5.4    To construct, purchase or otherwise acquire, operate and maintain waterworks considered to be necessary for supplying water to land for domestic, stockwatering and irrigation purposes.

5.5    To supervise and regulate the distribution and use of water from a water resource according to the relevant water use entitlements, by erecting and maintaining devices for the measuring and division of water.

5.6    To construct, purchase or otherwise acquire, operate and maintain waterworks considered to be necessary for draining land.

5.7    To ensure the reduction of the risk of damage to any land in the event of floods by clearing the channel.

5.8    To change a watercourse back to its previous course where it has been altered through natural causes.

5.9    To ensure the removal of alien plants in the area of jurisdiction of the Association.

5.10    To administer all financial matters, as well as all administration for the efficient functioning of the Association.

ANCILLARY FUNCTIONS OF ASSOCIATIONS

6.1    The Association may perform functions other than its principal functions only if it is not likely -

6.1.1    to limit the Association's capacity to perform its principal functions; and

6.1.2    to be to the financial prejudice of itself or its members.

6.2    Other functions of the Association may include the provision of services within the capabilities of the Association to or on behalf of any user, organisation or community within the area of operation of the Association, where such services will be to the benefit of the entire community within the area of operation of the Association.

FOUNDING MEMBERS

7.1    The founding members of the Association are the present elected members of the Sundays River Irrigation Board, as set out in Annexure 1 of this constitution, which Board is to be transformed into a Water User Association in terms of section 98(4) of the Act and whose members have authorised the elected Board members to act on their behalf for purposes of effecting the transformation.

7.2    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, duties and functions provided for in Act no. 36 of 1998 and other agreements with the Department of Water Affairs and Forestry, arrange the election in accordance with this constitution.

MEMBERSHIP OF THE ASSOCIATION

8.1    Any person, who, in terms of section 22(1) of the Act, excluding sub-section (1)(a)(i) thereof, has an entitlement to use water and who may exercise the right from waterworks and/or sources under control of the Association, must become a member of the Association.

8.2    The first members of the Association, whose names appear in Annexure 2 of this constitution, are;
    
8.2.1    the present members of the Sundays River Irrigation Board who are automatically members of the Association; and

8.2.2    other persons within the Association's area of operation with an existing lawful entitlement to use water and who have requested the Management Committee in writing to become members of the Association and whose applications have been approved.    

8.3    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.

8.4    An association must allow a person to become a member of the Association if directed by the Minister to do so.

8.5    A member may only resign as a member of the Association if that members entitlement lapses and all financial obligations to the Association have been met and the approval of the Management Committee has been obtained, such approval may not unreasonably be withheld.

8.6    Membership of the Association will be terminated whenever a members entitlement to water lapses.

REGISTER OF MEMBERS

9    All members must communicate their addresses from time to time to the Association, who must keep a register of the names of members and all relevant particulars.

RIGHTS OF MEMBERS

10.1    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.

10.2    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 subsequently amended.

LIABILITY AND OBLIGATIONS OF MEMBERS

11.1    The financial liability of members is limited to the amount of unpaid charges and interest thereon owed by them to the Association, but with due regard to the provisions of section 60 of the Act in connection with outstanding charges in respect of land.

11.2    Where any waterwork of the Association encroaches upon or intersects the property of a member, the Association will enjoy all servitudinal rights necessary for the proper exercising of the Association's functions and the provisions of the Act, and specifically sections 126, 127 and 128 thereof, will apply.

11.3    An obligation is placed on members to pay all charges timeously that are assessed by the Association on the due dates so as to ensure the continued financial viability of the Association.

11.4    All members are to ensure that all waterworks on his/her property are not damaged or any flow interfered with in any such waterworks.

11.5    The member will ensure the efficient utilisation of the water resource.

QUALIFICATION OF CANDIDATES FOR MEMBERSHIP OF MANAGEMENT COMMITTEE

12.1    Any member of the Association is, subject to disqualifications contemplated in Schedule 4 to the Act and provided that the member is not more than 180 days in arrears with charges, including interest, due to the Association, eligible for election as a member of the Management Committee.

12.2    As the Association's area of jurisdiction is divided into sub-districts, a member will only be eligible for election as a member of the Management Committee for the sub-district in which the member resides, or within which the water use entitlement is exercised by him or her.

NOMINATION OF AND VOTING FOR MEMBERS OF MANAGEMENT COMMITTEE

13.1    A person whose name appears on a voters list prepared for a sub-district of the Association's area of jurisdiction, will be entitled to nominate candidates for election as members of the Management Committee and to vote only in elections for that sub-district.

13.2    At least 14 days notice must be given to all members of the Association that nominations for the various sub-districts will be called for.

13.3    In the event that more than one nomination is received for any one sub-district, elections will be held in accordance with this Constitution.

13.4    At least 21 days notice of an election must be given to all members of the sub-district in which more than one nomination was received giving the date, the venue and the times that voting will take place.

13.5    If two or more candidates receive an equal number of votes, the member will be determined by lot under supervision of the returning officer for that sub-district.

13.6    Sub-districts can also determine their own rules and procedures to nominate their members of the Management Committee.

MEMBERSHIP OF MANAGEMENT COMMITTEE

14.1    The Management Committee will consist of a member representing each sub-district.
    Future sub-districts will be decided on by the Management Committee of the Water User Association.

14.2    Members will be subject to the disqualifications contemplated in Schedule 4.

14.3    Management Committee Members will be compensated for costs incurred to attend meetings which value and conditions will be determined from time to time by the Management Committee.

14.4    The compensation of the Management Committee Members must not exceed the contribution to the Association by the sub-district, which that Member represents.

    Other amounts that have to be paid on behalf of that sub-district by the Association to other entities, such as the Department of Water Affairs and Forestry, must be deducted from the total contribution of the sub-district before determining the value as in the first paragraph.

Elected Membership of the Management Committee

14.5    Six sub-districts will be geographical areas as defined in Annexure 3 attached to this Constitution.

14.6    Sub-district 7 is for emerging farmers, which will include emerging farmers in the sub-districts in item 14.5 above. This sub-district will be represented by 3 members on the Management Committee.

14.7    Membership of the Management Committee will be determined in accordance with this constitution by all members whose names are on the Association's voters list for that geographical sub-district.

14.8    Members will be elected for a fixed term of 3 years.

    For the first election the respective periods of office of the members will be determined by lot under supervision of the returning officer.

14.9    If a vacancy occurs on the Management Committee, the vacancy must be filled in terms of this constitution provided that the member is elected for a period equal to the remainder of the period for which the member who has vacated the office would otherwise have continued in office.

Nominated Membership of the Management Committee

14.10    The remaining four sub-districts will be nominated members by the following communities and/or organisations;

    14.10.1        Nelson Mandela Metropolitan Municipality.

14.10.2    Sundays River Valley Municipality.

    14.10.3        Recreation, Tourism and Environment.

14.10.4    Development. This sub-district to be represented by members nominated in terms of items 14.14 and 14.15.

14.11    One official from the Department of Water Affairs and Forestry as an observer at committee meetings.

14.12    Members will be nominated for a term indicated by their organisation / sub-districts.

14.13    The Association subscribes to the requirement set out in section 2 of the Act in respect of ensuring appropriate community, racial and gender representation and commits itself to promoting the implementation thereof to the extent that the Association is practicably able to do so.

14.14    Should, after an election or nomination process, the composition of the Management Committee result in no representation for a particular gender on the Committee, the Chairperson must request all members of the Association and the interest groups to, within 21 days after notice, nominate persons of that gender who have agreed thereto and who need not be members of the association or water users, to serve on the Management Committee of the Association, provided they have an interest in water use in the area. The Chairperson must after expiry of the nomination period select, by lot, one of the nominees for a term of one year.

14.15       Should, after an election or nomination process, the composition of the Management Committee does not comprise of at least six members of a previously disadvantaged race group on the Committee, the Chairperson must request all members of the Association and the interest groups to, within 21 days after notice, nominate persons of that category who have agreed thereto and who need not be members of the association or water users, to serve on the Management Committee of the Association, provided they have an interest in water use in the area. The Chairperson must after expiry of the nomination period select, by lot, the required number of nominees for a term of one year.

VOTING POWERS OF MEMBERS

15.1    The number of votes per sub-district will be determined on the following basis -

15.1.1    A pro-rata number of votes in proportion to the quantity of water authorised under a particular entitlement divided by the annual quota for the Association's area of operation. In this calculation -

15.1.1.1    all fractions must be rounded off to the next higher whole figure; and
15.1.1.2    no sub-district will be awarded more than 10 votes; or

15.1.2    One vote for every two hundred and fifty hectares or part thereof, in terms of the sub-district’s entitlement, provided that no sub-district will be awarded more than 10 votes.

15.2    The sub-district for Tourism, Recreation and Environment will have a voting power between 1 and 10, according to the disciplines they represent and to the approval of the Management Committee.

APPOINTMENT OF CHAIRPERSON AND DEPUTY CHAIRPERSON

16.1    After the election of the Management Committee the members of the Management Committee must elect a Chairperson and a Deputy Chairperson of the Association from amongst the elected members of the Management Committee. The Members of the Management Committee may appoint any person to chair the proceedings for that purpose.

16.2    The Chairperson and Deputy Chairperson hold office for a period of 12 months from the date of their election and may be re-elected.

16.3    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.

16.4    A new Chairperson and Deputy Chairperson of the Management Committee will be elected annually. Should any of these offices be vacated before the term expires, the office must be filled immediately according to the procedure set out in this item.

VOTER'S LIST

17.1    The founding members of the Association must select a person to prepare a voter's list for the first election of members of the Management Committee. The voter's list must show -

17.1.1    the names of all members included in Annexure 2 to this constitution and, where appropriate, the name of a member's accredited representative;

17.1.2    particulars of each member's entitlement to water use; and

17.1.3    the number of votes a member is entitled to.

17.2    As the Association's area of operation is divided into sub-districts, the voter's list must also be divided into sub-districts and the particulars referred to in item 17.1 must be shown under the respective sub-districts.

17.3    The number of votes will be determined on the following basis -

17.3.1    A pro-rata number of votes in proportion to the quantity of water authorised under a particular entitlement divided by the annual quota for the Association's area of operation. In this calculation -

17.3.1.1    all fractions must be rounded off to the next higher whole figure; and
17.3.1.2    no member will be awarded more than 10 votes; or

17.3.2    One vote for every five hectares or part of five hectares of land that can be irrigated in terms of a member's entitlement, provided that no member will be awarded more than 10 votes.

17.4    If the entitlement to use water is not in the name of a natural person, the holder must nominate an accredited representative whose name must appear on the voter's list and who may exercise the vote.

17.5    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 voter's list and he or she may exercise the vote.

17.6    The voter's list must annually be revised by the Management Committee and also whenever there is an amendment to the Association's area of operation.

APPOINTMENT OF EMPLOYEES

18.1    The Management Committee may employ such persons as it considers necessary to perform the Association's functions under this constitution.

18.2    The appointment of employees or any change in their conditions of service must be approved by resolution of the Management Committee.

18.3    All employees of the Association will remain in office despite any change in the composition and membership of the Management Committee.

18.4    The status of the current employees of the Irrigation Board will remain unchanged with the transformation to the Association.

RAISING OF LOANS

19.1    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.

19.2    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 days before the date of the meeting of the Committee at which the proposal will be considered.

19.3    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.

CHARGES AND THE RECOVERY OF CHARGES

20.1    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 assessment so prepared includes all operational, maintenance and betterment requirements for all the sub-districts.

20.2    The Management Committee may recover the charges assessed from either -

20.2.1    the owners of the land concerned; or

20.2.2    any person to whom water is supplied on the land.

20.2.3    any other members.

20.2.4    successor-in-title.

20.3    Whenever the Management Committee has assessed a charge, the Committee must prepare an assessment roll setting forth -

20.3.1    the name of each member liable to pay charges;

20.3.2    a description of the piece of land, which may be a specially delineated area, in respect of which the charge is assessed;

20.3.3    the quantity of water the member is entitled to;

20.3.4    the amount of the charge assessed;

20.3.5    the date or dates on which payment is due and the amount due on each date; and

20.3.6    the applicable rate of interest payable on non-payment and the effective date of interest as determined by the Management Committee from time to time.

20.4    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.

20.5    If after proper notice, any charge, including interest due by the member to the Association, is more than 180 days in arrears, the full charges for that financial year become due and the Association may in addition to the powers vested in it in terms of section 59(3) of the Act, without further notice to the member, collect the amount due by issuing summons in a magistrate's court with jurisdiction in the area, regardless of the amount involved, in which event the members will be responsible for all collection and legal costs, inclusive of attorney and client costs.

20.6    After making allowances for the requirements of item 59(4) of the Act, the Association will restrict or suspend the flow of water to the member until the full amount of the charges has been settled with the Association and the following conditions will apply, in addition to item 59 of the Act;

20.6.1    The Association will be under no obligation to supply any water, which was  not able to be supplied during such restriction or suspension of supply.

20.6.2    The Association will not be liable for any losses experienced by the member due to the suspension of water supply.

20.6.3    The member is not entitled to any discount on the charges due to the non supply of water.

20.6.4    Section 20.6 only refers to a distribution system owned by the Association, or for which they have a license issued by the Department to operate it.

20.7    An individual member against whom charges have been levied and his successor-in-title is jointly and severally liable for such charges including interest, on transfer of any properties.

ANNUAL REPORT

21.1    The Management Committee must, within three months after the end of the Association's financial year, convene a general meeting of members and must at the meeting -

21.1.1    table an audited financial statement of the Association's accounts for the preceding financial year; and

21.1.2    Give an account to the members of its activities during the year.

21.2    Notice of the meeting must be provided to members at least 14 days prior to the meeting.

WINDING UP

22.1    The Association may be dissolved by a resolution passed at a special general meeting held for that purpose, provided that -

22.1.1    the resolution is passed by a majority of two thirds of the members present and entitled to vote at the meeting; and

22.1.2    the resolution is confirmed at a further general special meeting held not less than four weeks after the preceding special general meeting by a majority vote of members entitled to vote thereon.

22.2    A meeting passing a resolution referred to in item 22.1.1 of this constitution may also pass resolutions by a majority vote for -

22.2.1    the appointment of a liquidator; and

22.2.2    the disposal of surplus funds and assets of the Association after winding up and after the payment of all debts and obligation 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.

AMENDMENT OF THE CONSTITUTION

23    With the approval of the Minister, the constitution of the Association may be amended by the members of the Association if -

23.1    a special meeting of members convened for this purpose, votes in favour of such an amendment: Provided that a majority of at least two-thirds of members present at the meeting and which represent not less than 20 % of the members of the Association in accordance with its latest voters' list, is obtained.

23.2    the notice to members contain the verbatim proposed amendment and has been forwarded to members at least 21 days prior to the date of the meeting; and

23.3    only amendments, to the proposed amendment, of which written notice has been given, are discussed and voted on at such a special meeting.

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