Justice Delayed

Still waiting on the National Water Act’s promise of equity and redress

by John Dini, Water Research Commission

Water security is often listed as a limiting factor on development, health and livelihoods, especially in a water-scarce country like South Africa. While access to safe, reliable, affordable water for household use remains crucial, there are other dimensions of water security beyond the immediate necessities of domestic consumption. This article delves into one of these broader dimensions, focusing on the use of water for various economic activities like irrigation, mining, power generation and industry. In the context of a limited resource and increasing competition for water between users, the question of who gets access to water for these economic uses is as much a political as a technical one.

In particular, this blog examines how access to water resources for productive purposes was determined historically and how inequalities in access to water formed part of the legacy inherited when South Africa transitioned to democracy in 1994. Radical changes to the laws governing the ownership of water are discussed, including approaches for removing inequalities in access to water resources. Progress with water allocation reform is examined along with an analysis of the key factors that have influenced the pace of this process. Finally, some potential solutions for accelerating water allocation reform to bring about the desired socio-economic outcomes are put forward.

Ownership of Water

It is no longer possible to privately own water in South Africa. In a radical change from the colonial and apartheid eras, the 1998 National Water Act identifies the people of South Africa as the collective owners of the country’s water resources. This law further directs the Minister of Water and Sanitation to act as a trustee, on behalf of the people, to ensure that water is protected, used and managed sustainably and equitably.

Instead of outright ownership, the National Water Act makes provision for temporary entitlements to use water, through a system of water use licensing. Anyone intending to use water in volumes that exceed certain thresholds is obliged to apply for such a licence. These volumes of water are greater than those that would be consumed by households and are typically used for purposes like irrigation, mining, power generation or industry. The water use licensing system is a key mechanism for making sure that our limited water resources are shared equitably and used sustainably and efficiently.

A Historical Legacy of Inequality in Access to Water

At the transition to democracy in 1994 there were significant race-based inequalities in access to water. These inequalities manifested at the level of basic water supply for household consumption and access to water resources for economic purposes. Although progress has been made in tackling these inequalities, many continue to this day. It has been argued that there is greater inequality in access to water than in access to land. Despite this, access to water resources has not featured nearly as prominently in public and political conversations as have issues around land. 

The predecessor of the National Water Act, the 1956 Water Act, embedded a system, known as riparian rights, that determined who was able to own and use water. Riparian rights are the legal rights and privileges that come with owning property along the banks of a river or other waterbody. In this way, riparian rights gave a landowner the right to use water flowing over or under that land. This meant that black people, who had been systematically dispossessed of their land under colonial and apartheid rule, were simultaneously deprived of access to associated water resources. 

By 1994, it was estimated that only 1,2% of the population, mainly large-scale white farmers, controlled 95% of the water used in rural areas. They also controlled the economic benefits flowing from the use of this water.

Communal tap for drinking water. Credit: SuSanA Secretariat, CC BY 2.0, via Wikimedia Commons

Water Law for the Democratic Era

This vastly unequal distribution was one of the largest challenges confronting the team that set out to bring water policy and law into alignment with the democratic Constitution adopted in 1996. The 1998 National Water Act was a radical departure from its predecessor in several key respects. Through the adoption of the public trust doctrine, a legal principle through which some natural and cultural resources are preserved for public use, the Act removed the concepts of private water and access to water by virtue of land ownership. Instead, it placed ownership of water in the hands of the people of South Africa, held in trust by the state. 

The Act built on the foundations laid by the Constitution’s Bill of Rights, by embedding equity and sustainability as central guiding principles in how all decisions are made about water. The water use licensing system introduced by the Act set out to regulate a range of activities, including taking and storing water, waste discharges and other activities that may impact on a water resource. Other mechanisms, such as compulsory licensing, were put in place to enable water to be re-allocated in areas where demand for water exceeds the available supply, or where it is necessary to bring about more equitable sharing of water among existing and new users.

To ensure a smooth transition, water-use rights that existed before the National Water Act came into effect remained valid under the new law. For example, these so-called existing lawful uses (ELU) allowed a farmer, who was legally using water from a river flowing through their farm, to continue doing so without having to apply immediately for a water use licence to keep using this water. The approach taken was intended to enable important economic activities using large volumes of water, like mining and agriculture, to continue uninterrupted during the transition period. 

In taking forward the legislated intention to share water resources more equitably, the then Department of Water Affairs and Forestry published a Water Allocation Reform Strategy in 2008. The strategy set national targets for 30% of available water to be allocated to black people by 2014, and 60% by 2024. 

Progress with Water Allocation Reform

The process of water allocation reform has been slower and more difficult than originally anticipated. Despite supportive legislation and clear targets, and although some progress has been made, the pre-1998 status quo remains largely intact. Water use rights remain overwhelmingly vested with white, large-scale commercial water users. 

Despite the intention to use ELU as a transitional measure, most of the apartheid-era water rights remain in place. This is a major contributing factor leading to the Water Allocation Reform Strategy not coming close to meeting its targets. Research published in 2021 by the Water Research Commission showed that, as of October 2018, white people controlled 98,6% of the volume of water allocated to individuals through both water use licences and ELU.

Volume of water (in million cubic metres) allocated to individuals by race group for period ending October 2018. Source: Hydrosoft Institute, 2021. Decolonising water access and allocation: A renewed effort to address persistent inequalities in the water sector, Water Research Commission Report No. 2858/1/21.

Emerging Tensions

This legacy of inequality is one contributing factor to emerging tensions and conflicting perceptions of the National Water Act. On one hand, the Act continues to be defended as a progressive legal instrument that contains all the levers needed to drive change and achieve the vision articulated in the Constitution. On the other, a critique is emerging of the National Water Act as an ineffective compromise, or worse as a colonial agenda repackaged and well disguised as progressive global good practice. 

In some respects, these tensions are similar to the contestations emerging around the Constitution itself. The inadequate progress in removing socio-economic inequalities to accompany the transfer of political power has brought about a renewed focus on the adequacy of the Constitution as an enabler for required societal changes. In the case of both the Constitution and National Water Act, questions have been brought to the fore around the extent to which problems stem from inherent flaws in the legislation itself, or whether the challenge lies in how the legislation is implemented. It is most likely to be a combination of both issues.

Driving Forces

Several driving forces have been identified as responsible for the slow pace of water allocation reform. In some catchments, all available water resources are already fully allocated to existing users, which leaves little available water for new entrants. Compulsory licensing, through which water in fully allocated catchments would be freed up for re-allocation, is proving to be time-consuming and complex to implement. Only three catchments, covering a small fraction of the country, have been completed to date. 

Implementation of the water use licensing system has also proved difficult and problematic. Complex, time-consuming and costly application and evaluation procedures caused significant backlogs in the issuing of licences. Especially, many small and emerging users reported experiencing the bureaucracy as difficult to access and non-responsive for securing information and support on requirements for water use authorization.

It has been argued that the authorities’ reluctance to undertake widespread re-allocation of water has been partly driven by perceptions that economic and environmental damage may result from the transfer of water from established users, such as mines and commercial farmers, to emerging users. At the same time, while it was expected that there would be resistance to the intended process of redress, it does appear that there was an underestimation of the strength of vested interests in maintaining the apartheid-era status quo.

Recent research has highlighted how the lack of coordination between land reform and water reform further contributes to impeding equitable water reallocation. In some cases, land made available for redistribution lacked accompanying water rights, making it virtually impossible to use for activities requiring large volumes of water. The slower than anticipated pace of land reform has also resulted in fewer beneficiaries being able to apply for water allocations. Problems have also been identified with the extent of support and access to finance provided to land reform beneficiaries, which is necessary to improve people’s prospects of developing viable enterprises.

Lastly, there have been delays in fully implementing the sections of the National Water Act that deal with the establishment of new institutions or the reform of existing institutions responsible for water resource management. Numerous Irrigation Boards were established under previous legislation to develop and manage water resources for agricultural purposes. These Irrigation Boards needed to be overhauled and their purpose expanded to align them with the objectives of the National Water Act. It was intended for them to either be disestablished or converted to Water User Associations, which are new-order institutions established and regulated under the Act. Water User Associations are designed to be more inclusive in their membership and progressive in their functioning. Despite the intention for this transformation process to be achieved within six months of the National Water Act coming into effect, a large number of Irrigation Boards continue to exist in their original form. 

Similarly, the Act made provision for the establishment of Catchment Management Agencies as a way of decentralising water resource management. To date, however, only two are operational and function with a limited set of powers. 

Overcoming the Obstacles

Despite these setbacks, there are things that can be done to accelerate the pace of reducing inequalities in access to water resources. These measures include both improving the implementation of existing mechanisms in the National Water Act and amending the Act to incorporate lessons learned in the twenty-five years that have passed since it came into effect.

For example, emphasis can be placed on expediting the processes for extinguishing ELU, by requiring holders of ELU to apply for water use licences. Through these processes, systematic decisions can be made about how water can be allocated fairly and efficiently, taking into account future trends in water availability resulting from forces such as climate change. Work can be done to make the methods for compulsory licensing as simple and quick as possible, while remaining compliant with what the law prescribes. A more systematic approach is needed for identifying those catchments where compulsory licensing should be prioritised.

Integration between land reform and water reform can be improved by harmonising the respective administrative procedures for each, including improving how information is shared between the different authorities responsible for the procedures. In this respect, a key intervention could be to ensure that landowners whose properties are earmarked for restitution do not transfer the water rights linked to those properties prior to the change of ownership, an act that is often the cause of land reform beneficiaries receiving land minus the accompanying water rights.

Within the existing water use authorisation system, good progress has been made in accelerating the process for evaluating and issuing licences. There may be opportunities to develop specific mechanisms for authorising water use by small-scale users that involve little cost to the user and low administrative effort by the regulator. Approaches can also be explored that acknowledge customary or traditional mechanisms for regulating water use. In the process, large numbers of existing small-scale users could be legalised and protected while focusing regulatory attention, in the form of licences, on large-volume, high-impact users.

When it comes to changing the law, it will be important to distinguish between flaws in the law and problems with its implementation. This requires us to ask some key questions. How well has our water law been able to respond to the inherited legacy and the challenges of managing a scarce and variable resource within the context of competing demands for water? What needs to be nurtured beyond a change of law? What changes need to be made that will support better organisation for implementation?

As stated above, one priority area for amendment of the legislation is to limit or prevent the permanent transfer of water use authorisations between users. This would enable unused water allocations to be freed up for re-allocation to other users. Another priority is the removal of the obstacle posed to water allocation reform by ELU, thereby bringing all water users under the jurisdiction of the National Water Act. To facilitate this, legal scholars suggest the introduction of a clause that requires all ELU holders to apply for licences by a set date, failing which these rights are forfeited.

Conclusion

In hindsight, with the benefit of more than 25 years’ experience of implementing the National Water Act, it is clear that we have underestimated both the complexity and magnitude of the task of water allocation reform, and the degree of resistance to this process. The longer racialised inequalities in access to water resources persist, the more the public will mistrust both the ability of the laws put in place to rectify these inequalities, and the government tasked with their implementation. 

Yet as this analysis shows, despite the setbacks, the situation is not hopeless. There remain options for improving both the legislation itself and how it is implemented. The process that has begun to amend the National Water Act provides an opportunity for everyone who has an interest in social justice in the management and sharing of our water resources to make their voices heard. Advancing such social justice is key to ensuring that our water law will continue to improve and adapt as South Africa pursues equitable and sustainable water futures.