Boreholes in Zimbabwe

The following information about Boreholes was published in a recent issue of one of the weekly newsletters sent out by one of our readers – it is sent out with how permission. If you want to receive his newsletters – mostly about labour issues -  then send me an email – cost $80 per 6 months

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ALL BOREHOLE OWNERS (and some others; see below) SHOULD REGISTER with ZINWA by 30^th JUNE

Press advertisements over the past month have been calling on ‘borehole owners, prospective borehole owners, borehole drillers and water bottling companies’ throughout Zimbabwe to register with the Zimbabwe National Water Authority by Saturday 30^th June 2012 (in practical terms, this means by the 29^th, of course). That is 2 weeks away.

Affected persons must obtain a form from the nearest Zinwa office and complete it in order to register. Heads up – existing Zinwa ‘GW’ (ground water) forms ask for information such as size of property (and sometimes a map, grid reference, GPS reading), depth of borehole, abstraction rate, etc so it would be as well to obtain this registration form early rather than at the last moment, if you have not already registered. 

At the end of this article, we give contact details of Zinwa/Catchment Council offices around the country.

We are informed by Zinwa’s Harare office that this exercise is a separate matter from being ‘registered’ with your local water catchment/sub-catchment council for the purpose of paying the quarterly rates for domestic boreholes – which we covered in the August 2011(1) and February 2012(2) bulletins in this series. (Incidentally, on the 28^th March the Senate reportedly adopted, without significant debate, the Adverse Report of the Parliamentary Legal Committee on the two most recent SI’s setting these quarterly rates – but for the moment the rates remain in force; and apparently they don’t have any bearing on this registration exercise anyway.) Paying quarterly borehole rates is itself a separate matter from paying monthly water charges to the local urban council. Confusing, isn’t it? Quizzed further, the Zinwa official said that if one has paid the quarterly rates, “You can bring the receipt when you come to collect the form”.  Why? “It doesn’t matter.” End of quiz – Zinwa wins by a technical knockout.   

This nation-wide registration exercise is being carried out by the Ministry of Water Resources Development & Management. The relevant legislation is contained in the Water Act (Chapter 20:24 of the Statute Law of Zimbabwe) and in Statutory Instrument 206 of 2001, the Water (Permits) Regulations, 2001.

The press notice refers to sections 4, 6, 34 and 35 of the Act, giving the Minister authority to call for registration.

·        Section 4 states, ‘(1) No person shall be entitled to ownership of any water in Zimbabwe and no water shall be stored, abstracted, apportioned, controlled, diverted, used or in any way dealt with except in accordance with this Act; and (2) Subject to this Act, a permit issued in terms of this Act shall confer upon its holder a right to the use of water in accordance with the permit.’

So, as I read this, if you had thought that by getting a borehole drilled at your residence or workplace you had managed to circumvent and rise above the incompetence of whichever local authority you are obliged to pay to provide you with daily water, you were wrong. You may own your borehole but you access and use water from it at the pleasure of the State – which may ‘permit’ you to do so.

·        Section 6 of the Act sets out the general functions of the Water Minister. Relevant here are ‘the protection of the country’s water resources’; ensuring ‘the availability of water to all citizens for primary purposes’, e.g. ‘for basic domestic human needs in or about the area of residential premises’ (pause for hollow laughter here); and ensuring ‘the equitable and efficient allocation of the available water resources… for the development of (productive) sectors’. Despite manifold and manifest shortcomings in regard to the above, one can see the rationale. Among the Minister’s duties are to ensure that ‘ground water, surface water, evaporation, clouds and rainfall are recognized as being interdependent and forming part of a single water cycle’. So far, so good. Other ministerial duties, directly relevant to the issue of permits, are (a) to obtain information on the quality/quantity/use of the country’s water resources; and (b), in regard to water bottling companies, to regulate the supply of water by any person to consumers with respect to quality ‘without, however, impairing the efficiency of the person’s operations’ (which would be re-assuring in a perfect world).

So, what the Minister is up to in calling for this registration exercise, is to obtain information to help him in his duties of protecting, allocating and ensuring the availability of water. Probably also finding something for Zinwa workers to do now that the primary responsibility for water has shifted back to local authorities.

·        Section 34 of the Act deals with permits, stating ‘(1) No person shall abstract water for any purpose other than primary purposes except in terms of a permit; and (2) An application for a permit shall be made in the prescribed form and lodged, subject to subsection (3) (which deals with the special case of water for mining purposes) with the catchment council for the area concerned’.

One might think that the reference to ‘primary purposes’ means that domestic boreholes abstracting water only for domestic uses are excused from the need to register. While the legislation reads that way, apparently that is not the intention of the Minister. Firstly, the press notice clearly states ‘all borehole owners should register their boreholes’. (Would I be alone in wondering whether those ‘high-ups’ who reportedly ignore their electricity and telephone bills will also ignore this call to register their boreholes?)

·        Secondly, replacement section 35 of the Water Act, substituted by the General Laws Amendment (No. 2) Act, 2002 (Act No. 14 of 2002) refers to the need to obtain written authority in regard to work on ‘a borehole for any primary purposes’. However, that is not to say that one could not mount a legal challenge on the basis of the clear exception to the need for a permit for primary purposes which is stated in terms of section 34(1) of the Act.

Now let’s look at the practicalities of the exercise, something that ministers seem not to do. How many boreholes exist in the country? Pending the results of a survey (this survey?), let us hazard a guess at, what, 21 000 boreholes? With 7 catchment councils in the country, this means an average of 3 000 registrations each. Nine weeks from 2^nd May to 29^th June have been set aside for the registration exercise. Assume a 5-day working week of 8 hours a day each. 45 days multiplied by 8 hours each provides 360 hours (or 21 600 minutes) registration time at each catchment council office to process 3 000 registrations/permits – meaning around 7 minutes has been set aside for each registration (on average, and assuming only one clerk is working on registrations at each office). If this sounds like a familiar scenario, that’s because it is. Think Zinara and the new vehicle-licence-disk fiasco. Perhaps we should all give up working for a living and take up queueing instead, paid for by taxpayers’ money. No, that won’t work, with no-one working, there’d be no taxpayers’ money – hence no government – hence no taxes – but hence no queueing. Of course, the downside is there’d be no services – no water, no electricity, no refuse removal, no road maintenance, and so on. But who would notice? Anyway, let’s get back to the borehole registration exercise.

WHO ELSE must register by 29^th June?

Ø  All prospective borehole owners

If you want to have a borehole drilled after 2^nd May 2012, you have to get a permit from Zinwa/your nearest catchment council office. However, this is not what the Water Act itself says. Replacement section 35(2) actually says that within 30 days after the completion of the sinking of the borehole, the owner/occupier must notify the catchment council.

Ø  All borehole drillers

Must ‘with effect from 2^nd May to June 2012 register their companies with Zinwa and should not drill any borehole for anyone who is not in possession of a permit’. But what about section 35(2)? – see previous point.

Ø  All water bottling companies

Must ‘with effect from 2^nd May to June 2012 register their companies with the Zinwa’. What you should do if you are not a company but, say, a sole trader is not addressed. This points up the fact that a ministerial notice inserted in the press does not amount to law, on its own – and certainly cannot change what is clearly laid down in law. Hence the cross-references in the press notice to the legislation.

The final piece of legislation we need to examine here, since it is referred to in the press notice, is Statutory Instrument 206 of 2001 – the Water (Permit) Regulations, 2001.

The regulations are 96 pages long, 70 pages of which consist of various forms. Sixteen forms deal with different aspects of ground water registration. The regulations cover –

§  Permits for surface water (i.e. ‘found on or below the bed of a public stream, including marshes, springs, swamps or vleis forming the source of or found on the course of the public steam, and includes water in storage works, drainage works or permanent pools’).

§  Authority to drill boreholes and commercial wells (i.e. ‘a well for the abstraction of ground water for commercial or other purposes not being primary purposes’).

§  Permits for ground water (i.e. ‘all water beneath the surface of the ground, not visible on the land concerned and includes water in boreholes and wells’). The reference to SI 206/2001 in the press notice does not indicate which section is relevant to registering boreholes – this reference to ‘permits’ appears to be the closest. But its relevance may be arguable. Also worth noting is that in the regulations section 13 says you must apply for a permit to abstract ground water ‘for any purpose other than a primary purpose’, which would seem to indicate that domestic boreholes do not need a permit. However, that is what section 35 of the parent Act also said, before it was amended in 2002 – and the Act, as amended, takes priority over subsidiary legislation like regulations. 

§  Combined water schemes.

§  General provisions – including offences; as far as we can make out, taking account of cross-references in the Act, the regulations and the Criminal Penalties Amendment Act (Act No. 22 of 2001), the fine for not complying with the legislation is up to a Level Four fine ($100, which would require prior appearance in magistrates court).

§  Minimum requirements for borehole siting/drilling/construction, various forms (all complex), and fees (in terms of Statutory Instrument 126/2009, which amended SI 206/2001, the fee is $20 for authority to drill a borehole, and $20 to report a borehole – which is what the current exercise is about, so you should probably expect to have to pay to ‘register’).

Best advice?  Or least-worst option, perhaps. While I am in favour of surveys and research as a general principle, this looks like yet another niggling task imposed on a long-suffering citizenry – something government often seems best at. ‘Idle hands’, as my old professor used to say. But unless you intend to challenge the registration on a legal point, it is probably best just to grin and bear it – or, rather, grit your teeth and expect to queue and fork out yet again. 

Contact details for registration

The press notice says you can register your borehole etc with Zinwa or the nearest Water Catchment Council Offices. It is not clear whether you can also register at a local Sub-Catchment office.

For contact details of Zinwa, look in the telephone directory under ‘Zimbabwe National Water Authority’. If there is more than one phone number, we can only suggest you ring around to locate the ‘ground water’ office. For example, there are many addresses for Zinwa in Harare. Apparently the appropriate one is at 128 Samora Machel Avenue (corner 4^th Street).

The press notice gives physical addresses etc for the seven Catchment Council offices, as reproduced below. Where fax numbers are given, this may mean that you could be faxed the form – but that seems unlikely. You could quiz the Zinwa officials about that – and also whether there is any significance in the post office box numbers appearing in the press notice (except for the Mazowe Catchment Council). If you need the details of a closer office, or are not sure what catchment area you fall under, again we suggest you phone your nearest catchment office and quiz them.

Here are the contact details as they appear in the press notice.

Gwayi Catchment, 2^nd Floor, Mhlahlandlela Complex, Box 566, Bulawayo, phone 09-69361-3, fax 09-77109

Mzingwane Catchment, Ground Floor, Mhlahlandlela Complex, Box 2008, Bulawayo, phone 09-885191/2/6/8,

fax 09-882865

Sanyati Catchment, 2^nd Street, Box 554, Gweru, phone 054-222511/4, fax 054-220168

Runde Catchment, 717 Mineral Road, Box 250, Masvingo, phone 039-263690, fax 039-263972

Save Catchment, 7 Park Road, Box 210, Mutare, phone 020-60988 or 60926, fax 020-62848

- and for what its worth, the Harare Catchment Councils, in addition to Zinwa at 128 Samora/4^th Street -

Mazowe Catchment, 3^rd Floor, Old Mutual House, cnr Sam Nujoma/Speke Ave, (no box number given), Harare,

phone 04-700953 or 761260, fax 04-791594

Manyame Catchment, 1^st Floor, Old Mutual House, cnr Sam Nujoma/Speke Ave, Box CY 715, Causeway, Harare,

phone 04-702124 or 793732 (no fax given).