Do we need a Water Use Bill?
4 October 2019
The Minister of Human Settlements, Water and Sanitation, LindiweSisulu, recently made an announcement to develop legislation dedicated to water use. Based on the context in which the statement was made, the proposed Bill will focus on transforming the water use sector. This has been the vision of the National Water Act (“NWA” or “the Act”) from inception. Equity and sustainability are grounded in the Act as two fundamental principles guiding the management of water resources in South Africa. Its preamble envisions the sustainable use of water for the benefit of all as the “ultimate aim of water resource management”. Deriving benefit from water as a resource for productive purposes is at the heart of calls to transform the water use sector.
In light of the most recent announcement by the Minister, this brief examines the current legislative provisions and policy documents intended to drive water use reform. It once again highlights the inconsistency between law and its implementation.
ENTITLEMENTS TO USE WATER: THE LEGAL SETTING
The Minister and her Department have the ultimate responsibility of ensuring that water is allocated equitably and used beneficially in the public interest. With the enactment of the NWA, old-order water laws were repealed, including riparian rights to water. However, the ability to access rights to use water was largely maintained through a provision in the NWA recognising “existing lawful use”.
Existing lawful use is one of four entitlements of water use permitted by the Act and allows users to continue using water if the use had lawfully taken place two years prior to the NWA coming into force in 1998. In order to qualify as an existing lawful use, it has to be verified. The process comprises registration of the use, validating the quantum of the use and verifying its lawfulness. Validation (confirming the quantity of use) and verification (establishing the lawfulness of the use) forms part of a complex scientific process but is fundamental to our knowledge and understanding of who holds the rights to use water, how much they are entitled to and from which resource they are entitled to draw water. Legally, users who claim to hold an entitlement under an existing legal use may not continue to use water if they have not applied for verification when requested to do so or their verification has been refused. No licence is required to benefit from an existing lawful use until the Department, or any other designated responsible authority, requires the user to apply for it. Compulsory licensing, as provided in the Act, is one of the main management tools used by the Department to implement the transition from existing lawful use to licensed use.
New economic entrants who wish to enter the water use sector after the enactment of the NWA must apply for a licence, either with the Department or another water use institution with delegated authority to administer water use licences, like a catchment management agency. Water use licences are issued subject to compliance with the conditions imposed by the licence. In contemplating an application for a licence, including a compulsory licence, the responsible authority must take into account relevant factors. Included in this list is the need to redress the results of past racial and gender discrimination. The courts have held that this should not be the overriding factor when considering a licence application. However, when viewed with sustainability and equity at the core of the Act’s objectives, it may be argued that equity should be given some superior status in considering water allocations.
Use may also be authorised more generally without requiring a licence – for a specific use, user or geographic area – through general authorisations. This does not replace existing entitlements; and while it may require registration, the nature of the process assists in alleviating the administrative burden attached to licensed use. The Department has said general authorisations can be used as a tool to implement water allocation reform, particularly authorising emerging farmers, for example, to use water generally in an area. A final entitlement – known simply as schedule 1 use – makes provision for using water on a smaller scale, like for domestic and minor recreational purposes.
It is within this legal framework to water use entitlements that water use reform has been implemented.
WATER USE REFORM POLICY
With a view to reinforce and strengthen the equity objective in the NWA, and as part of its broader water reform project, the Department launched the Water Allocation Reform (“WAR”) Programme. From the outset it should be clear that WAR does not concern water for ordinary household use. Assisting the reforms intended by the NWA, two instruments formally direct WAR policy – the WAR Strategy, published more than a decade ago in 2008, and the updated edition of the National Water Resource Strategy (“NWRS II”) of 2013.
Targets, cost estimates and timelines set by the WAR Strategy are ambitious. By 2024, the Strategy aims to have 60 percent of allocable water in the hands of historically disadvantaged individuals, half of which must be allocated to women. Implementation is envisioned in two phases. The first reviews and integrates institutional arrangements to facilitate WAR, while the second develops and implements action plans within the context of catchment management strategies. Mechanisms identified to implement redress include “setting-asides”, general authorisations, compulsory licenses and partnerships.
The NWRS II provides a similar baseline for WAR but, in addition, sets five priorities which must direct water allocation. Rightly so, the reserve is prioritised above other uses. Next in line are international water requirements relating to agreements with neighbouring states and the SADC Shared Watercourses Protocol. Allocation of water for poverty eradication, improvement of livelihoods of the poor and marginalised and uses that will contribute to greater racial and gender equality are prioritised above water uses that are strategically important to the national economy, like electricity generation or water transfer from one water management area to another. Last on the list of priorities is water used for general economic purposes, including commercial irrigation and forestry. The NWRS II distinguishes between three types of water-related equity – accessing water services, accessing water resources for productive purposes and accessing the benefits from water resource use to derive maximum benefit to all.
WAR IN PRACTICE
To date, WAR programmes have been implemented in three areas using compulsory licensing: Tosca Molopo in the North West, Jan Dissel in the Western Cape and Mhlathuze in KwaZulu Natal. Two observations are clear.
First, implementation is complex and administratively onerous. It requires the preparatory processes of ensuring that an accurate reserve is set for the resource involved, that international watercourse obligations are respected, that verification of existing use is completed, and that a reconciliation of water demand and availability in the area is concluded. Once the call for compulsory licensing processes is published, users and prospective users in the area are called on to apply for an allocation of water. After the applications have been considered, the responsible authority must publish an allocation schedule which may be subject to objections and subsequent appeals to the Water Tribunal. Once the objection and appeal processes have been exhausted, a final allocation is published and licences issued.
Secondly, implementation is time consuming. The three areas comprised relatively small measures of water over diminutive geographic areas and involved no international water requirements. Reasons for reallocation of water were attributed to water conservation and received little objection. Yet, the process in Jan Dissels took just under three years and Mhlathuze just short of five. The protracted time barrier associated with reallocation may be aggravated if imposed for equity reasons.
According to a project published by the Water Research Commission (“WRC”), WAR has also been implemented in some areas using “set-asides”. However, the uptake of water resources in many instances has been slow. According to the WRC report, one of the major reasons for this is the lack of access to land and infrastructure on which the water can be used.
There is no doubt that the road to reforming water use allocations has been painfully slow. Several scholars have noted the complexity and challenges in implementing reform within the water use sector – particularly in rural parts of South Africa – which delay much needed headway. Within this context, it is sometimes easier to place the blame solely on legal instruments. And often, amending or supplementing them does provide the enabling environment necessary to implement reform. But the slow progress appears to emanate more from a lack of political will, lack of support structures for emerging farmers, socio-political and power balance factors at play in catchments, and the associated narrative of balancing equity needs with considerations that place the emphasis on the productive nature of existing lawful users in contributing to socio-economic stability and growth.
An assessment of the current legal framework shows that it places equity as a foundational principle; it has established mechanisms to implement reform, particularly compulsory licensing; and it provides for the establishment of institutions at catchment level that are designed, if appropriately capacitated, to implement reform regionally. While WAR policy documents are ambitious and lack the necessary tools to direct reform, they highlight an important point: implementing reform should be premised on catchment management agencies (“CMAs”) being established and operational. CMAs are potential key role players in ensuring that validation and verification processes are completed and that reform is implemented regionally. But only two CMAs have been implemented and are fully operational. In addition, those that have been established do not have the capacity or the delegated authority to contribute meaningfully to the process. This is unfortunate, as decentralised water governance is crucial to the Act’s purposes; as is ensuring equity. Delayed institutional development has contributed significantly to an inability to implement the Act as designed and intended.
It is unclear how the prospective water use law will fit into government’s strategy to develop a single Act to govern water as a service and water as a resource. What is clear is that a discussion on the failures of implementing water allocation reform needs to be put on the agenda. While the right to use water is no longer directly connected to land ownership, the question of land still impacts on the right to use water for productive purposes. This is partly because the old-order riparian water rights were, to a large extent, maintained through the Act’s recognition of existing lawful use. And without water, the productive potential of land is significantly diluted. The opposite may also be true and has been seen in the application of “set-asides”: without land, allocated water supply may become futile. Debates (or lack thereof) around water allocation reform have perhaps missed an opportunity to gain serious momentum by not connecting with land reform processes and its internal dynamics. On the other hand, water allocation reform is not solely about land reform. It also requires standalone attention.
By Michelle Toxopeüs, Legal Researcher, HSF, 4 October 2019
 Address by LindiweSisulu, Minister of Human Settlements, Water and Sanitation in the occasion of the Water and Sanitation budget vote in the National Assembly, accessed at https://www.gov.za/speeches/address-l-n-sisulu-16-jul-2019-0000.
 National Water Act 36 of 1998.
 Chapter 1 of the NWA.
 Section 3(2) of the NWA.
 Sections 32-35 of the NWA.
 Regulations requiring that a water use be registered, GNR 1352 of GG No 20606 of 12 November 1999.
 In terms of section 35 of the NWA.
 Sections 43-48 of the NWA.
 The process is regulated by sections 40-42 of the NWA, read with the Regulations regarding the procedural requirements for water use licence applications and appeals, GNR 267 in GG No 40713 of 24 March 2017.
 Section 27(1)(b) of the NWA.
Guguletto Family Trust v Chief Director, Water Use Department of Water Affairs and Forestry and Another, unreported case no A566/10 of the North Gauteng High Court, 25 October 2011; and Goede Wellington Boerdery (Pty) Ltd v Makhanya NO and Another  ZAGPPHC 141.
 Section 39 of the NWA.
 Schedule 1 of the NWA outlines use that does not require a license.
 Water that becomes available is set aside in a catchment and allocated to historically disadvantaged individuals.
 The reserve is the quantity and quality of water set aside or “reserved” in each water resource to satisfy basic human needs and to protect aquatic ecosystems.
 Michael Kidd provides an extensive exposition of compulsory licensing and details the complexity and time-consuming nature of the process using Tosca, Jan Dissel and Mhlathuze as case studies. See Kidd M “Compulsory licensing under South Africa’s National Water Act” Water International 41(6) (2016) 916-927.
 WRC Research Report No 1855/1/11 titled “Water Allocation Reform in South Africa: History, Processes and Prospects for Future Implementation”.
 Peters R & Woodhouse P “Reform and Regression: Discourses of Water Reallocation in Mpumalanga, South Africa” Water Alternatives 12(3) (2019) 1-15; Mendez-Barrientos L et al. “The quest for water: Strategizing water control and circumventing reform in rural South Africa” International Journal of Water Resource Development 34(2) (2016) 245-258; Kemerink JS et al. “The question of inclusion and representation in rural South Africa: challenging the concept of water user associations as a vehicle for transformation” Water Policy 15 (2013) 243-257; Movik S “A fair share? Perceptions of justice in South Africa’s water allocation reform policy” Geoforum 54 (2014) 187-195; Kemerink JS, Ahlers R & van derZaag “Contested water rights in post-apartheid South Africa: The struggle for water at catchment level” Water SA 37 (2011) 585-594; Movik S “The dynamics and discourses of water allocation reform in South Africa” STEPS Working Paper (2009).