SA has an ave rainfall of 450mm/a compared to the world ave of 860mm/a
As a result SA’s water resources are scarce and limited.
Based on the aforesaid, SA relies primarily on surface water resources* (urban, industrial and irrigation requirements)
Based on the aforesaid, SA relies primarily on surface water resources* (urban, industrial and irrigation requirements)
In 2004 the NWRS indicated that of the 19 WMAs in SA, 10 were in deficit and
By 2006 only 6 of WMAs were in surplus
For this reason, the DWA released the IWRP
Aim: to address the water resource situation
Purpose of report: Where water management areas are not currently facing water shortage most will be facing shortage in the absence of appropriate intervention
Until recent:
Until recent:
Water law has been developed inappropriately
Access to water rights has been to the detriment of the majority of the population
Since SA 1994 however water law was reformed to address:
Equitable access of water
Gov. to exercise management control over water resources
1. Brief History of SA water law
1. Brief History of SA water law
The Water Act 54 of 1958
The transition from the Water Act to a new water law
Water rights, the constitutional property clause and compensation for expropriation*
The right of access to water and a basic water supply
Water quality concerns
6 Conclusion
When the Dutch Ruled (1652 -1910)
When the Dutch Ruled (1652 -1910)
The common changed (decisions taken by the Supreme Court)
From a position where the State was dominus fluminis (State had the right to allocate water)
To one where riparian rights* were the dominant standard
The Water Act was enacted during apartheid, and did not replace the riparian rights system.
The Water Act was enacted during apartheid, and did not replace the riparian rights system.
This led to the majority of South African’s (black people) being restricted in their access of water.
The Act made a distinction between private and public water
Private water: ‘all water which rises and or falls naturally on any land or naturally drains or is led onto one or more pieces of land which are the subject of separate original grants, but is not capable of common use for irrigation purposes’.
Private water: ‘all water which rises and or falls naturally on any land or naturally drains or is led onto one or more pieces of land which are the subject of separate original grants, but is not capable of common use for irrigation purposes’.
Thus, the owner on whose land private water was found had exclusive use and enjoyment of such water, provided, he does not pollute it.
Also, the sale or disposal of private water was prohibited, provided, that the Ministry of Water Affairs grants a permit to do so.
Public water: ‘any water flowing or found in or derived from the bed of a public stream, whether visible or not’.
Public water: ‘any water flowing or found in or derived from the bed of a public stream, whether visible or not’.
Public stream: ‘a natural stream of water which flows in a known and defined channel, whether or not such a channel is dry during any period of the year and whether or not its conformation has been changed by artificial means, if the water therein is capable of common use for the irrigation on two or more pieces of land riparian thereto which are the subject of separate original grants or on one such piece of land and also on [state] land which is riparian to such stream, provided that a stream which fulfils the foregoing conditions in part only of its course shall be deemed to be a public stream as regards that part only’. *
The right to use of public water was divided into three categories:
The right to use of public water was divided into three categories:
Only the riparian owner had the right to use the water resource with respect to agricultural and industrial purposes
Only the riparian owner had the right to use the water resource with respect to agricultural and industrial purposes
The riparian owner had the right to use all surplus water for the benefit of agricultural and industrial purposes
The use of public water for industrial purposes was subject to a permit.
However, public water could be used for any of the defined categories, provided that such usage was benecial and did not amount to wastage.
Ground water: which is found underground could either be public or private.
Ground water: which is found underground could either be public or private.
Constitution
Constitution
S24: Environment.-Everyone has the right-
to an environment that is not harmful to their health or well-being; and
to have the environment protected, for the benefit of present and future generations through reasonable legislative and other measures…
The right to water is provided for in s27
The right to water is provided for in s27
(1) Everyone has the right to have access to -
(a) ….
(b) sufficient food and water…
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
The new water legislation must be considered within these two rights
The new water legislation must be considered within these two rights
This, however, are not the only relevant fundamental rights with regard to access to water.
Others include: s9, s10, s11*
Further, water falls within the exclusive national legislative competence*
This reflects the national importance of water (the state is the custodian of the nation’s water)
Control body for Water: national Dept of Water Affairs and Forestry
All South Africans must have equal access to water
The hydrological cycle is a single system
International dimensions of SA’s water resources and the rights of neighbouring countries are recognised.
s2: purpose of the Act is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account, which include the following factors:
s2: purpose of the Act is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account, which include the following factors:
(a) meeting the basic human needs of present and future generations
(b) Promoting equitable access to water
(c) Redressing the results of past racial and gender discrimination
Act provides that national government is the public trustee of the nation’s water resources
Act provides that national government is the public trustee of the nation’s water resources
Requires it ‘to ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate’.
The Ministry of Water Affairs and Forestry is responsible to ‘ensure that water is allocated equitably and used beneficially in the public interest, while promoting environmental values’.
In order to meet these objectives the Act has several innovative features that are departures from past practice
In order to meet these objectives the Act has several innovative features that are departures from past practice
1. CATCHMENT MANAGEMENT AGENCIES
Catchment management must be carried out in acc with the national water resource strategy which det how the nation’s water resources are to be ‘protected, used,developed, conserved, managed and controlled’.
The strategy is intended to set out the ‘strategies, objectives, plans, guidelines and procedures of the Minister and institutional arrangments relating to the protection, use, development, conservation, management and control of water resources within the framework of existing relevant government policy’.
2. WATER RESOURCES CLASSIFICATION SYSTEM
2. WATER RESOURCES CLASSIFICATION SYSTEM
This involves the determination of the class of the water resource and the relevant resource quality objectives
Determination is relevant to the notion of the Reserve, which means:
(a) ‘ quantity and quality of water required-
to satisfy basic human needs by securing basic water supply, as prescribed under the Water Services Act for people who are now or who will, in the near future, be
development and use of [he relevant water resource:
Pending a final determination of the Reserve, the Act provides for a preliminary determination, which is a necessary prerequisite for the authorisation of a water use
Pending a final determination of the Reserve, the Act provides for a preliminary determination, which is a necessary prerequisite for the authorisation of a water use
‘water use’: widely defined by the Act to not only include ‘use’ of water but also activities that could have an adverse impact on water resources.
‘Water use’ is defined in s21
The Act provides that a person wishing to use water must be licenced to do so, except in three situations-
The Act provides that a person wishing to use water must be licenced to do so, except in three situations-
First exception: uses of water that are likely to have sufficiently insignificant impacts on water resources.
Second exception: applies if the water use is a continuation of an existing lawful use.
Third exception: water use permissible in terms of a general authorisation
3. VARIOUS INSTITUTIONS
3. VARIOUS INSTITUTIONS
CMA: to decentralise management form the national Dept to various management areas throughout the country.
Water User Associations: not designed to carry out water management functions but to ‘operate at a restricted localised level, and are in effect co-operative associations of individuals water uses who wish to undertake water-related activities for their mutual benefit’.
The Act criminalises several activities including failure to comply with the conditions attached to permitted water uses and water pollution. Maximum penalty is a fine OR five years imprisonment.
Compensation is offered by a court to any person who suffered loss resulting from non-compliance of the Act.
s115- to pollute as an offence
s115- to pollute as an offence
s19- provides for the prevention and remediation of the effects of water pollution by imposing a duty on landowners or persons in control of land on which water pollution threats arise to take all reasonable measures to prevent any such pollution from occurring, continuing and reoccurring.
The Water Services Act works in tandem with the NWA
The Water Services Act works in tandem with the NWA
Main objectives (a),(b)…
To implement these obj, the Act est several water services institutions
(water services authorities, water services providers, water services intermediaries, water boards and water service committees)
s3- everyone has the right to access to basic water supply and basic sanitation.
s3- everyone has the right to access to basic water supply and basic sanitation.
This gives effect to the right contained in 27 of the Constitution
Every water services institution is required to take reasonable measures to realise these rights.
Strategy is est ito s5 of the Act
Strategy is est ito s5 of the Act
Revolves around three fundamental obj of managing SA’s water resources:
1….
2….
3….
Chap 3 (Part 2)- deals with authorised (licensing) water use
Chap 3 (Part 2)- deals with authorised (licensing) water use
Chap 4- water pricing and financial assistance
-Part 5: Water Management Institutions
-Part 6: addresses Monitoring and Information
-Part 7: disaster management (particularly wrt dam safety, floods and droughts and water pollution)
-Part 8: ‘Anticipated programme of implementation activities’*
-Part 9: functional implications are considered here
Chap 4- Complimentary strategies
Chap 4- Complimentary strategies
Focuses on expertise among practitioners in the water sector, educating and creating awareness among stakeholders and water research.
Chap 5- deals with National planning and co- ordination and international co-operational in water management
Recognises that the Act has important interrelationships with other legislation (WSA and NEMA)
Further, that co-operative relations with other institutions, local and international are required for effective implementation of the strategy.
The NWRS is a comprehensive and dynamic document that can be changed, depending on changes in circumstance.
The NWRS is a comprehensive and dynamic document that can be changed, depending on changes in circumstance.
It is also required by Statute that this document be reviewed periodically.
Over- bureaucratisation of the Act
Over- bureaucratisation of the Act
- Likely to be inadequate capacity to carry out the licencing system effectively ( corruption and maladministration)
(b) Water rights, the constitutional property clause and compensation for expropriation
Whether those deprived of water rights will be compensated?
To answer these two questions a consideration of the nature of existing water rights have to be determined.
- The requirement of compulsory licencing, could lead to water users’ current allocations extracted from common law and not subject to being reduced or removed.
The question is then whether such reduction or removal of an existing allocation is an expropriation of water rights.
The question is then whether such reduction or removal of an existing allocation is an expropriation of water rights.
In a Harksen v Lane NO case it was held that expropriation consists of a transfer of property to the State.
Also stated that, the measures adopted by the State under the NWA, which may have the effect of reducing or extinguishing existing water allocations, does not involve a transfer of rights to the State, and thus, water rights would not be expropriated.
As held in Harksen v Lane NO
As held in Harksen v Lane NO
Reduction and removal of existing water rights does not amount to expropriation, therefore, there is no Constitutional to compensation
The NWA, however, does provide for compensation
- Ito s22: Water Tribunal will determine th amount payable
Based on the aforementioned
Based on the aforementioned
The NWA is unlikely to infringe the right of property in s25 of the Constitution
-Objective: to provide everyone with access to water
In 2004, there were three main areas of water quality concerns
In 2004, there were three main areas of water quality concerns
Salination*
Eutrophication*
Water abstraction and impoundments
Proliferation of alien species* (both plants and animals)
Water pollution (created though sewage and waste water systems)
Water quality issues are linked with water use, since not only must there be enough water to meet the needs of both humans and the environment, but the quality must be of such that it can sustain those needs.
Water quality issues are linked with water use, since not only must there be enough water to meet the needs of both humans and the environment, but the quality must be of such that it can sustain those needs.
As seen, the NWA is a comprehensive and ambitious instrument aimed:
As seen, the NWA is a comprehensive and ambitious instrument aimed:
-at achieving effective, sustainable management of SA’s water resources and
To ensure not only that all people have sufficient access to a scarce resource but also that there is enough water available to meet environmental needs.
The Act relies on a considerable administrative endeavour which is not capable of being nor intended to be implemented immediately
Thus, we will only be able to appreciate and reap the full benefits of the new legislation several years into the future.
