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South African National Water Resources Infrastructure Agency SOC Limited Act, 2024 (Act No. 34 of 2024)

Chapter 6 : Transfer of National Water Resources Infrastructure and Disestablishment of TCTA

36. Transfer of national water resources infrastructure

 

(1)

(a) Section 115 of the National Water Act applies, in respect of the transfer of a national water resources infrastructure, to the Agency.
(b) The Minister may declare, by notice in the Gazette, which government waterworks are deemed to be national water resources infrastructure and are to be vested in the Agency, and may determine, from time to time, which infrastructure is no longer national water resources infrastructure and to which water management institution it should be transferred.

 

(2) Subject to subsection (1), the Minister must, within a period of 12 months after the date of incorporation of the Agency and in consultation with the Agency, determine by notice in the Gazette a date on which the Minister will transfer to the Agency the national water resources infrastructure, which immediately before that date vested in the Department.

 

(3) The transfer contemplated in subsections (2) includes—
(a) all assets and associated liabilities;
(b) all water user agreements, contractual and non-contractual rights and obligations, functions, directives and duties associated with the national water resources infrastructure;
(c) all operation and maintenance responsibilities of the national water resources infrastructure;
(d) all financial advisory services, including systems for the billing and collection of revenue payable for water use from the national water resources infrastructure; and
(e) the transfer of employees and officials of the Department associated with the national water resources infrastructure in terms of section 197 of the Labour Relations Act, 1995 (Act No. 66 of 1995).

 

(4) The Minister must, either by way of a written directive or in the shareholder’s compact, give direction in respect of the utilisation of any surplus revenue, if any, towards capital improvements or social projects of the national water resources infrastructure being transferred.

 

(5) The Minister must, by notice in the Gazette determine a date within 12 months after the incorporation of the Agency or such extended period determined by the Minister by notice in the Gazette, after the incorporation date and subject to subsection (10), on which date the Minister shall transfer to the Agency—
(a) the whole of the commercial enterprise of the TCTA, including all assets, liabilities, rights and obligations of whatsoever nature and howsoever arising, who acquires such enterprise as a going concern;
(b) the TCTA’s treaty functions; and
(c) the TCTA’s non-Treaty functions.

 

(6) On the date contemplated in subsection (5), the Agency becomes the owner of all moveable and immoveable property, which immediately prior to the date determined by the Minister in subsection (5)—
(a) was registered in the asset registers of the TCTA;
(b) fell under the control or custody of the TCTA;
(c) was possessed, occupied or used by the TCTA as if it was the owner thereof; and
(d) was registered with any Registrar of Deeds in the name of the TCTA.

 

(7) On the date contemplated in subsection (5), in all pending litigation, including arbitration, the Agency must be substituted as a litigating party for the TCTA, as if the Agency was a litigant from the commencement thereof.

 

(8) On the date contemplated in subsection (5), in all contracts to which the TCTA is a party, the Agency must substitute the TCTAas a contracting party, as if the Agency had been a contracting party from the negotiation and conclusion thereof.

 

(9) On the date contemplated in subsection (5), in all guarantees issued in respect of the financial obligations of the TCTA, including any guarantees issued under sections 66 or 70 of the Public Finance Management Act, the Agency must substitute, and hereby substitutes, the TCTA as a contracting party, as if the Agency had been the entity guaranteed from the beginning.

 

(10) On the date contemplated in subsection (5), all existing financial instruments of the TCTA must be regarded as having been issued by the Agency.

 

(11) Despite any law to the contrary, any reference to the TCTA or a representative of the TCTA in any law, contract, register or record created in terms of a statute, contract or other legal document, must, with effect from the date contemplated in subsection (5), be regarded as being a reference to the Agency or a representative thereof.

 

(12) The Minister may not determine the date contemplated in subsection (5) until such time as—
(a) the Government of Lesotho has been consulted on the transfer of the Treaty functions and non-Treaty functions of the TCTA to the Agency;
(b) an arrangement has been made with the TCTA’s primary creditors, to the satisfaction and approval of the Minister of Finance, in compliance with the Public Finance Management Act; and
(c) -an arrangement has been made for the transfer of personnel employed by the TCTAto the Agency in terms of section 197 of the Labour Relations Act, 1995 (Act No. 66 of 1995).