In the vast universe of SA’s environmental legislation, the newly effected Regulation 3630 of the Water Services Act seems a mere drop in the ocean. But it’s a drop that may have a ripple effect on companies in the food and beverages sector, as well as in manufacturing, mining, agriculture, chemical, energy and automotive production – and, further down the line, improve accountability in the water sector and eventually also water service delivery.

Clearly, this is crucial in a water-scarce country such as SA, where each person had only 728 m³ of freshwater available for them in 2021, compared to nearly 70 000 m³ per capita in Gabon (the highest volume in Africa), according to the World Population Review. ‘Across South Africa, the government is keenly aware of the issues facing the water sector and is taking action,’ says Webber Wentzel law firm. It points out that in May, government included the water sector as a key priority as part of the launch of Phase 2 of Operation Vulindlela.

‘Regulation 3630 mandates that all organisations operating water and wastewater treatment facilities in South Africa must have their operations overseen by a qualified and registered process controller,’ says Carlyn Frittelli Davies, environmental lawyer at ENS. ‘This applies to both municipal and non-municipal plants, including those on mines, manufacturing sites, housing estates, farms and other private sector facilities.’

The regulation governing the registration of water process controllers with the Water Institute of South Africa (Wisa) kicked in on 1 July 2025. ‘We lobbied for this legislation for a long time, because process controllers are an essential – but historically neglected – part in the water value chain,’ says Wisa CEO Lester Goldman. ‘They’re the unsung heroes of the water sector, often working in challenging conditions as they run the water and wastewater treatment plants across the country.’

He says that roughly 60 years ago, it used to be an undesirable job, where minimally qualified workers would be sent to a foul-smelling water treatment plant as a form of demotion or punishment.

‘Today, the role of process controllers has significantly evolved, along with the increasing complexity of water treatment and the automation of many of these processes,’ says Goldman. ‘Regulation 3630 professionalises the designation of process controllers, who are the first line of defence against environmental and health risks, and aligns their responsibilities with those of engineers and natural scientists.’ He expects the new regulation to enhance water security in SA.

According to ENS, facilities operating without properly qualified and professionally registered process controllers are now in breach of national regulations, which could lead to fines and legal action.

However, it will be some time before the regulation can be properly enforced. ‘While there are provisions under the Draft Water Services Amendment Bill that will make non-compliance an offence, it’s still a long time before the Water Services Act 108 of 1997 will be amended accordingly,’ says Alistair Young, a lawyer in the environmental law practice at Cliffe Dekker Hofmeyr (CDH).

The Draft National Water Amendment Bill and Draft Water Services Amendment Bill were both published on 17 November 2023 for public comment. They were approved by Cabinet in August 2025 and will now be sent to Parliament. The bills intend to improve water resource management and service delivery while also strengthening enforcement powers and the protection of water sources.

One vital aspect of the Draft National Water Amendment Bill is premised on equitable access to SA’s water resources. ‘A much-debated proposal in the Amendment Bill is the granting of water-use entitlements while advancing transformation in the water sector,’ says Webber Wentzel. ‘The Amendment Bill gives the minister the power to make regulations prescribing the criteria that must be considered when redressing the results of past racial and gender discrimination concerning water use.’

The law firm quotes a new section in the draft bill that prescribes that a responsible authority must ‘prioritise the redress of past racial and gender discrimination when issuing a licence or general authorisation and set aside a certain volume of water in each water management area to achieve this redress’.

Another controversial provision refers to the strict liability for directors, where in the case of a transgression, the fault on the director’s part is irrelevant and they will be held personally liable. ENS recommends a ‘vicarious liability’ approach instead, which would bring it in line with the National Environmental Management Act and only hold a director liable if they failed to take all reasonable steps to prevent the commission of the offence from occurring.

The ‘use it or lose it’ principle is also contentious, as it sets out that a volume of water may be curtailed when a water user has not exercised the full use of their authorised volume of water in an unspecified period. ‘This provision will have an impact on industries that have different levels of water consumption during different phases or where weather conditions affect the level of consumption,’ according to ENS.

All contentious provisions in the bills remain open for debate, and significant redrafting may occur once public submissions have been considered, says Frittelli Davies. ‘None of the contentious provisions have been definitively clarified or amended. However, there are still opportunities for stakeholders to influence the final text during the parliamentary process before the Portfolio Committee, then during the National Council of Provinces consultation process. The final enactment is consequently unlikely before mid-2026.’

As to be expected from early law drafts, some provisions are simply not drafted in a clear manner and still need to be substantiated, such as the proposed changes relating to the protection of water resources. Wandisile Mandlana, Bowmans’ partner specialising in environmental and regulatory law, underlines that these are important, but says, ‘in some instances, the provisions are entirely peremptory, prohibiting certain practices outright. This is likely to cause rigidity in decision-making as authorities are not able to properly consider context in decision-making. Overall, these provisions aimed specifically at agriculture, forestry and mining have a significant potential to delay new developments and investments in these sectors’.

Asked which other new pieces of environmental legislation are likely to have a major impact on SA companies, Young names the draft regulations for the Carbon Budget and Mitigation Plan, ‘as well as the proposed amendments to the listed activities under the National Environmental Management: Air Quality Act 34 of 2009 (Nemaqa) that require an air emission licence, both of which were published for comment in August 2025. While still in draft form, the proposed legislative developments stand to significantly impact industries with high emissions’.

The proposed changes to the Nemaqa-listed activities include a significantly longer list of subcategories of activities within the organic chemical industry that will now require an air emission licence. ‘This is subject to the applicable special arrangements allowing for the licence to be obtained within 12 months of the amendments taking effect,’ says Young. ‘Further, additional capex may be required to bring emissions within prescribed limits or otherwise comply with the conditions of the licence.’

Meanwhile, CDH calls the publication of the draft regulations for the Carbon Budget and Mitigation Plan ‘an important step in establishing and giving effect to South Africa’s climate change policy commitments and to set into motion key provisions of the Climate Change Act’. CDH explains that the draft regulations establish a mandatory carbon budgeting system for high-emitting sectors and activities and apply to companies (referred to as ‘data providers’) whose emissions of listed greenhouse gases exceed 30 000 tons of CO₂ equivalent annually. It further outlines how carbon budgets will be allocated, monitored and enforced.

These draft regulations also require the submission and implementation of mitigation plans, which will be required to describe the actions to be implemented to reduce greenhouse gas emissions and to remain within allocated carbon budgets. ‘The first commitment period is set to run from 1 January 2026 to 31 December 2030,’ says Young.

‘Data providers will be required to submit annual progress reports on both their emissions and the implementation of mitigation measures. Non-compliance may result in penalties, including higher carbon tax rates and fines of up to R10 million or imprisonment for up to 10 years.’

As the universe of SA’s environmental laws continues to evolve, companies need to prepare for a future where the protection of water, air and other natural resources is not just a regulatory concern, but a necessity for building resilience in an increasingly climate-stressed economy.

By Silke Colquhoun
Image: Gallo/Getty Images