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White Paper on Water Policy
South Africa
30 April 1997
This paper represents the policy of the South African Goverrnent, as aproved by Cabinet on 30 April 1997. The document forms an important part in the review and reform of the Water Law in South Africa.
Preamble: Water in our lives.
INTRODUCTION
SUMMARY OF POLICY
APPROACHES
SECTION A: BACKGROUND
1. SETTING THE CONTEXT
1.1. SCOPE AND PURPOSE
1.2 STRUCTURE
1.3. THE PROCESS
1.4. ACKNOWLEDGEMENTS
2. THE NEW SOUTH AFRICAN CONTEXT
2.1. THE CONSTITUTION AND WATER
2.2 WATER AND SOUTH AFRICA’S DEVELOPMENT VISION
3. THE INTERNATIONAL CONTEXT
3.1. TRENDS IN INTERNATIONAL WATER POLICY
3.2. INTERNATIONAL OBLIGATIONS AND AGREEMENTS
SECTION B: NEW NATIONAL WATER POLICY
4. WATER RESOURCE MANAGEMENT IN SOUTH AFRICA - PRINCIPLES AND THE POLICY VISION
4.1. THE OBJECTIVES OF WATER POLICY IN SOUTH AFRICA
4.2. OPTIMUM RESOURCE USE AND PROTECTION
5. WATER RESOURCE POLICY
5.1. THE LEGAL STATUS OF WATER
5.2. PRIORITIES - THE BASIC NEEDS AND ENVIRONMENTAL RESERVE AND INTERNATIONAL OBLIGATIONS
6. WATER RESOURCE MANAGEMENT POLICY
6.1 WATER RESOURCE MANAGEMENT ACTIVITIES
6.2. WATER USE AUTHORISATIONS
6.3. PROTECTION OF WATER RESOURCES
6.4. WATER UTILISATION AND CONSERVATION
6.5. WATER PRICING POLICY
6.6 DEVELOPMENT OF WATER RESOURCES
6.7. PUBLIC SAFETY AND DISASTER PREVENTION
6.8. MONITORING, ASSESSMENT AND AUDITING
6.9. INTERNATIONAL CO-OPERATION
7. INSTITUTIONS FOR WATER MANAGEMENT
7.1. BACKGROUND AND DISCUSSION
7.2. POLICY STATEMENT ON INSTITUTIONS
7.3. HUMAN RESOURCE DEVELOPMENT
7.4. RESEARCH
8. WAY FORWARD
8.1. A NATIONAL WATER BILL
8.2. IMPLEMENTATION OF THE NEW LEGISLATION
8.3. CONCLUSION
APPENDIX 1.
FUNDAMENTAL PRINCIPLES AND OBJECTIVES FOR A NEW WATER LAW FOR SOUTH AFRICA
APPENDIX 2
Everyone has the right to have access to sufficient water.
(Bill of Rights, Constitution of South Africa, Section 27 (1) (b) )
The dictionary describes water as colourless, tasteless and odourless - its most important property being its ability to dissolve other substances. We in South Africa do not see water that way. For us water is a basic human right, water is the origin of all things - the giver of life. The poet Mazisi Kunene has said: From water is born all peoples of the earth.
There is water within us, let there be water with us. Water never rests. When flowing above, it causes rain and dew. When flowing below it forms streams and rivers. If a way is made for it, it flows along that path. And we want to make that path. We want the water of this country to flow out into a network - reaching every individual - saying: here is this water, for you. Take it; cherish it as affirming your human dignity; nourish your humanity. With water we will wash away the past, we will from now on ever be bounded by the blessing of water.
Water has many forms and many voices. Unhonoured, keeping its seasons and rages, its rhythms and trickles, water is there in the nursery bedroom; water is there in the apricot tree shading the backyard, water is in the smell of grapes on an autumn plate, water is there in the small white intimacy of washing underwear. Water - gathered and stored since the beginning of time in layers of granite and rock, in the embrace of dams, the ribbons of rivers - will one day, unheralded, modestly, easily, simply flow out to every South African who turns a tap. That is my dream.
Antjie Krog
A new South Africa and a new Water Law
Water is a powerful symbol throughout the world, carrying with it ideas of baptism and new life, cleansing and healing, and the promise of growth and prosperity. In contrast, in a region of growing demands on a limited resource, the increasing scarcity of water could result in devastating conflicts and catastrophes.
South Africa’s water law comes out of a history of conquest and expansion. The colonial law-makers tried to use the rules of the well-watered colonising countries of Europe in the dry and variable climate of Southern Africa. They harnessed the law, and the water, in the interests of a dominant class and group which had privileged access to land and economic power.
It is for this reason that the new Government has been confronted with a situation in which not only have the majority of South Africa’s people been excluded from the land but they have been denied either direct access to water for productive use or access to the benefits from the use of the nation’s water.
The victory of our democracy now demands that national water use policy and the water law be reviewed. Our Constitution demands this review, on the basis of fairness and equity, values which are enshrined as cornerstones of our new society. But there are other pressing reasons too.
The development of our society, our growing population, and the legitimate demands of the disadvantaged majority for access to that most crucial natural resource - water - have placed new demands on what is, although renewable, a limited resource that can easily become polluted or over-used. There is only so much water that falls on our land every year. Unless we wish to begin to remove the salt from our vast resources of sea water (a very expensive process that requires enormous amounts of energy) we have to live within our means.
The way that we use our water at the moment is far from ideal: we are not getting the social, economic or environmental benefits from our water use that we could, or should be getting, indeed, that we need to get.
The ability of the human mind to find solutions to problems is unending. We have learned how to borrow water from one year and pay it back in the next using our dams as the banks of the water economy. But just as there is a limit to the amount of money that Government can borrow to finance its programmes, there is a limit to the number of dams that we can afford to build, a limit to the number of rivers that we can afford to dam, a limit to the amount of water to be dammed. And, as with even the smallest household budget, we cannot afford to borrow (either money or water) if we cannot repay what we have borrowed.
It is time for us to extend our ingenuity in another direction. Water conservation programmes may be far better investments than financing new dams, new tunnels and pumping stations, new weirs and pipelines. Conservation programmes may both increase water supply (by, for instance, controlling land use practices) and manage demand (for instance, through the application of appropriate tariffs).
The use to which we, as a society, put our water will come under increasing scrutiny and intensifying management as we move into the 21st century. We will have to stretch our understanding, and apply our wisdom ever more creatively if our aspirations for the growth and development of our society are not to be constrained as a result of limited water resources.
This is a significant challenge for a country where rain falls unevenly in space and time; where the areas of highest rainfall are far from the industrial and urban heartland and from areas of rural poverty; where crippling droughts or devastating floods repeatedly wreak their vengeance on our land and our people; and where available water resources are inequitably distributed and sometimes inappropriately used.
South Africa has shown the world that peace can be created out of conflict. This new water policy for South Africa is yet another demonstration of this unique ability. The new water policy embodies our national values of reconciliation, reconstruction and development so that water is shared on a equitable basis, so that the needs of those without access to water in their daily lives are met, so that the productive use of water in our economy is encouraged, and so that the environment which provides us with water and which sustains our life and economy is protected.
I wish to thank all those who have put their time and energy into this important work.
Prof. Kader Asmal, MP
Minister of Water Affairs and Forestry
April 1997
Context
South Africa’s water law applied the rules of the well-watered colonising countries of Europe to the arid and variable climate of South africa. Water was mostly used by a dominant group which had privileged access to land and economic power. The victory of democracy demands that national policy on water use and the water law be reviewed.
The review must reflect the requirements of fairness and equity, values which are cornerstones of South Africa’s new Constitution. It must also reflect the limits to the water resources available to us as a nation.
There is a limit to the development of new dams and water transfers that we can afford or sustain. Our present use of water is often wasteful and inefficient and we do not get the benefits we should from the investments in our water. Water conservation may be a better investment than new dams. We will have to adopt such new approaches to water management if our aspirations for growth and development of our society in the 21st century are not to be held back as a result of limited water resources.
The law is the basis for our joint action as a society and must underpin our public efforts to manage water resources. This document serves to outline the policy which, it is proposed, will direct the management of water in South Africa in the future and will guide both the drafters in translating our intent into effective legislation and the managers in creating practical programmes of action.
Process of policy development
This White Paper is the product of two years of hard work and wide consultation. The first outcome was the production of the Fundamental Principles and Objectives for a New Water Law in South Africa which were approved by the Cabinet in November 1996. These Principles have in turn guided an intensive programme of work involving the Minister and other political leaders, officials from the Department of Water Affairs and Forestry and other Government Departments, organised user groups and South Africans from all walks of life and from all provinces in a process of consultation, research and synthesis.
At the same time, building on the foundations laid by the 1994 White Paper on Water Supply and Sanitation, and in close consultation with organised local government, a new Water Services Bill, regulating water supply and sanitation services, has been drafted. This will ensure that, as we address the large questions of water resource management, the needs of all South Africans for access to these basic services will not be forgotten.
The policy development process has been assisted by the support and involvement of officials and experts from other countries and from international organisations.
The White Paper is a very summarised product of this process. It does however outline the direction to be given to the development of water law and water management systems which will take us into the next century.
Key proposals
Some of the key proposals which will guide water management in South Africa in the future are that:
- The status of the nation’s water resources as an indivisible national asset will be confirmed and formalised.
- National Government will act as the custodian of the nation’s water resources and its powers in this regard will be exercised as a public trust.
- All water in the water cycle whether on land, underground or in surface channels, falling on, flowing through or infiltrating between such systems, will be treated as part of the common resource and to the extent required to meet the broad objectives of water resource management, will be subject to common approaches.
- Only that water required to meet basic human needs and maintain environmental sustainability will be guaranteed as a right. This will be known as the Reserve.
- In shared river basins, Government will be empowered to give priority over other uses to ensure that the legitimate requirements of neighbouring countries can be met.
- All other water uses will be recognised only if they are beneficial in the public interest.
- These other water uses will be subject to a system of allocation that promotes use which is optimal for the achievement of equitable and sustainable economic and social development.
- The new system of allocation will take into consideration the investments made by the user in infrastructure for water use.
- The new system of allocation will be implemented in a phased manner, beginning in water management areas which are already under stress. This system of allocation will use water pricing, limited term allocations and other administrative mechanisms to bring supply and demand into balance in a manner which is beneficial in the public interest.
- The riparian system of allocation, in which the right to use water is tied to the ownership of land along rivers, will effectively be abolished. Transitional arrangements will, over time, ensure an orderly, efficient and gradual shift in water use allocations as and when necessary.
- Water use allocations will no longer be permanent, but will be given for a reasonable period, and provision will be made to enable the transfer or trade of these rights between users, with Ministerial consent.
- To promote the efficient use of water, the policy will be to charge users for the full financial costs of providing access to water, including infrastructure development and catchment management activities. This will be done on an equitable basis and according to the realistic reasonable programme which has already been begun.
- All water use, wherever in the water cycle it occurs, will be subject to a catchment management charge which will cover actual costs incurred.
- All water use, wherever in the water cycle it occurs, will be subject to a resource conservation charge where there are competing beneficial uses or where such use significantly affects other users.
- The use of rivers and other water resources to dispose of wastes will also be made subject to a catchment management charge which will cover actual costs, and a resource conservation charge where there are competing beneficial uses for such use and/or such use significantly affects other users.
- To promote equitable access to water for disadvantaged groups for productive purposes such as agriculture, some or all of these charges may be waived for a determined period where this is necessary for them to be able to begin to use the resource.
- To promote equitable access to water for basic human needs, provision will also be made for some or all of these charges to be waived.
- All major water user sectors must develop a water use, conservation and protection policy, and regulations will be introduced to ensure compliance with the policy in key areas.
- In the long-term, since water does not recognise political boundaries whether national or international, its management will be carried out in regional or catchment water management areas (which will coincide either with natural river catchments, groups of catchments, sub-catchments or areas with linked supply systems with common socio-economic interests) recognising that conflicting interests will intensify the need for national management and supervision and that the policy of subsidiarity does not interfere with the need for a national and international perspective on water use.
- Provision will be made for the phased establishment of catchment management agencies, subject to national authority, to undertake water resource management in these water management areas.
- Provision may be made to allow for the functions of the development and operation of the national water infrastructure which links regional catchments and systems, to be transferred to a public utility established for that purpose.
Some of these proposals will pose a challenge to large water users although no particular group is particularly targeted. The White Paper makes it clear that the objective of the new policy is not just to promote equity in access to and benefit from the nation’s water resources for all South Africans, but to make sure that the needs and challenges of South Africa in the 21st century can be addressed.
Farming, including dry-land agriculture and forestry plantations, is an important part of the economy and sustains millions of people in the rural areas; it is also however the sector which accounts for around half the nation’s water use. The mining industry, as it brings out the mineral riches of the earth, unfortunately also releases many harmful products that can threaten our water. Both these sectors will have to re-evaluate their use of and impact on our water resources, and will have to pay a price for water that reflects the real economic cost, including the indirect costs to society and the environment for their water use.
Other sectors, particularly the rest of industry, will also come under pressure to clean up their activities. Local governments (and the domestic users they serve) will have to look at the way they use and often waste water. Even promoters of the needs of the environment will have to justify the degree of environmental protection they seek.
Way forward
As has been made clear in the Principles which guided the law review, the most important objective is to promote the well-being of all South Africans, present and future. The measures proposed are necessary if we are to survive as a nation in the 21st century.
The new national water law will recognise the need for a period of adjustment and transition which in some cases will last for many years. While goals will be set, there will also be provision for interim arrangements.
The way the new approach is put in place will be sensitive to the particular problems faced by each sector. Farmers will be helped to adjust; mines and manufacturing industry will be encouraged to promote their own programmes to meet the standards which will be set, monitored and enforced by Government. Conservation programmes are being started to enable local government and domestic users to meet their obligations.
The objective in relation to our neighbours is the same as it is within South Africa’s borders, to ensure that we adjust to the pressures and demands of the future through co-operation, not conflict, in harmony with the needs of our common developmental goals and the protection of our environment.
These activities and approaches are essential if we are to achieve the national goal of making sure that there will always be some water, for all who need it, contributing towards growing prosperity and equity in our land.
This goal is captured in the slogan of the Department of Water Affairs and Forestry whose staff have committed themselves to ensuring: Some, For All, For Ever, which sums up the goals of:
- access to a limited resource (some)
- on an equitable basis (for all)
- in a sustainable manner, now and in the future (for ever).
SECTION A:
1. SETTING THE CONTEXT
The objective of this White Paper is to set out the policy of the Government for the management of both quality and quantity of our scarce water resources.
This policy is one step in the process of reviewing the 1956 Water Act and the current practices and institutional arrangements for water management in the country. Both this White Paper and the review of the water law reflect the urgent need for change in this field, and the high priority given to appropriate water management by the national Government.
The purpose of this White Paper is to:
-provide some historical background regarding access to and the management of water in South Africa;
- explain the current development context in which South Africa finds itself;
- explain the environmental and climatic conditions which affect the availability of water in South Africa;
- put forward certain policy positions, based on the Fundamental Principles (see Appendix 1) adopted by the Cabinet in November 1996;
-outline the proposed institutional framework for water management functions;
- outline the steps which will follow the publication of this White Paper in order to translate the policy into law and action.
The most important step once the White Paper has been accepted will be to draft a National Water Bill based on the policy positions outlined in these pages. Interested parties will be involved in this process to make sure that the goals of the policy are achieved, and the legislation that is created is practical, efficient and effective.
The law is the basis of our collective action as a society and must underpin our public efforts to manage water resources. The policy outlined in this document will direct the management of water in South Africa in the future; it will guide the drafters who must translate the policy into effective and practical legislation; and it will guide those South Africans who must translate our intent into workable programmes of action.
This document will be available in English, Afrikaans, seSotho, Zulu and Xhosa. A summarised version will be made available in all official languages.
This document is divided into two sections. The first sets the context within which the White Paper is being produced, and outlines the issues to which it is responding. It covers the social, political, economic and development context in South Africa, as well as relevant international developments around water policy and management approaches.
The second section deals specifically with the new national policy for water resource management in South Africa. It sets out the broad policy vision, addressing specific aspects of water management as well as indicating the institutional arrangements that will be necessary to implement the policy. Finally, the way forward for the development of new legislation and implementation of the new policy is outlined.
A definition of terms used in this White Paper is provided at the end of the document (Appendix 2) to assist those who might not be familiar with some of the technical terms used in the water sector.
This White Paper is the result of two years of hard work and wide consultation, beginning with the distribution, in May 1995 of the booklet You and Your Water Rights for public comment. A Water Law Review Panel then produced a set of principles for a new water law, taking into account the comments from the public. These principles were further refined and released on 17 April 1996 as the basis for further public consultation.
Consultative meetings were held in all nine provinces, organised in such a manner that the voices of the rural poor and the disadvantaged would be heard.
Other interest groups such as agriculture, industry, mines, municipal users and environmental groups were encouraged to arrange their own meetings to discuss the principles. They also took part in the consultative meetings and in bilateral meetings with the Minister and Department. Other national government departments and both provincial and local spheres of government have also been consulted.
The consultations ended in a Water Law Review National Consultative Conference in East London in October 1996 which discussed practical approaches to implementation as well as the principles that will guide the drafting of the law. The final Fundamental Principles and Objectives for a New Water Law for South Africa (referred to from here on as the Principles) were approved by Cabinet in November 1996.
Eleven technical task teams were then appointed to translate the Principles into practical proposals which informed the policy positions of this White Paper. In addition, guided by Principles 25-28, a Water Services policy document and draft Bill have been produced.
A National Water Bill will be drafted on the basis of this White Paper, to be tabled in Parliament during the course of 1997.
Many individuals and organisations have made important contributions to this policy document and to the water law review process, and many key contributors have made their services available at no cost.
Substantial contributions have been made by external donors, notably the Finnish Government which made a five million rand grant to the process, but also British, American and other donors. Local contribution of expertise received from the Land and Agriculture Policy Centre and local contribution received from the Water Research Commission have supplemented budgetary funds.
2. THE NEW SOUTH AFRICAN CONTEXT
2.1. THE CONSTITUTION AND WATER
The Constitution, which expresses the desires of the people of South Africa who created it, is now the highest law of the land, and all law, including water law, must follow the spirit and letter of the Constitution and should give force to the moral, social and political values that the Constitution promotes.
The first of the Principles confirms this by stating that South Africa’s new water law shall be subject to and consistent with the Constitution in all matters and will actively promote the values enshrined in the Bill of Rights.
The need for the review of South African water law and for a fundamental change in our approach to water management is underpinned by the Constitution, both in relation to the creation of a more just and equitable society and, in relation to the broad need for more appropriate and sustainable use of our scarce natural resources, driven by the duty to achieve the right of access to sufficient water.
2.1.1. Preamble to the Constitution
The Preamble to the Constitution expresses an acknowledgement by the people of South Africa of the injustices of our past and a collective commitment to heal the divisions of the past. It commits us to establishing a society based on democratic values, social justice and fundamental human rights through, among other things, improv(ing) the quality of life of all citizens and free(ing) the potential of each person.
2.1.2. The Bill of Rights
The idea of social justice is taken further in Chapter Two of the Constitution which contains the Bill of Rights, the heart and soul of the Constitution, the cornerstone of our democracy. The Bill of Rights lays out the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom, as well as non-racialism and non-sexism.
The Bill of Rights is binding on our law and the courts, all government departments and organisations, the Government, and all South Africans, not only in terms of the rights, privileges and benefits that it gives, but also in terms of the duty and responsibility to implement and protect Constitutional rights and values.
2.1.3. Limitations clause
The rights set out in the Bill of Rights are not absolute. They may be limited by law if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and fairness. Their implementation must be coloured by the values expressed in the Constitution, and in accordance with the strict requirements of Section 36 of the Constitution, which provides a mechanism for the limitation of the fundamental rights and freedoms guaranteed in the Bill of Rights.
2.1.4. The Right to Equality
One of the rights which is important for the development of new water policy states that every person is not only equal before the law but also has the right to equal protection and benefit of the law. The Constitution, defines equality to include the full and equal enjoyment of all rights and freedoms, while also stating that in order to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
Apartheid was an inefficient racial spoils system under which the distribution of water-use was racially biased, and access to water and the benefits from its use a privilege of those with access to land and political and economic power. In the context of the reform of the water law, the right to equality requires equitable access by all South Africans to, and benefit from the nation’s water resources, and an end to discrimination with regard to access to water on the basis of race, class or gender.
2.1.5. The Rights to Dignity and Life
Water gives and sustains life. The failure of the apartheid government to ensure the provision of sanitation and water for basic human needs such as washing, cooking and drinking, for growing crops, and for economic development impacted significantly on both the right to dignity and the right to life amongst the black majority. The Constitution provides that every person has a right to life and guarantees the inherent dignity of all persons and the right to have their dignity respected and protected and places a duty on the state to make sure that this right is respected, amongst other things, through access to water.
2.1.6. Environmental Rights
The Bill of Rights also gives all South Africans the right to an environment that is not harmful to their health or well-being, as well as the right to have the environment protected for the benefit of present and future generations. It is, therefore, the duty of the Government to make sure that water pollution is prevented, that there is sufficient water to maintain the ecological integrity of our water resources, and that water conservation and sustainable, justifiable economic and social development are promoted.
This section of the Constitution moves us away from the old approach that pitted environmental goals against economic and development ones, and requires, instead, that they be integrated.
2.1.7. Property Rights
While describing the rights of our people to a just and fair society, the Bill of Rights also establishes the framework within which regulation and allocation of water can take place. Although the Constitution guarantees certain protections in respect of property, there are different ways in which a person’s property rights can be interfered with by the state. The Constitution draws a distinction between deprivation and expropriation. Generally speaking expropriation means the complete removal of an established property right and will require compensation. Deprivations, however, which merely limit the extent of use of property, (for example, zoning requirements under a town planning scheme limit the uses to which we may put the piece of land on which we live) do not require compensation.
The property clause also makes specific provision for corrective action. It states that no provision of the property rights clause may stop the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination.
Clearly, not every common law entitlement amounts to a constitutionally protected property right. The new Act will treat existing water uses in the manner described in Section 5.1.3 which considers the specific implications of these provisions. This is consistent with the position in many other countries where it is recognised that Government may generally impose regulations that impact upon property rights without such intervention being considered to be an expropriation.
2.1.8. The Right of Access to Sufficient Water
The property rights question cannot be understood without looking at the important provision of the Constitution which guarantees every person the right to access to sufficient water and food, and to health care services. This promises every child the right to, amongst other things, basic nutrition and health care services. Access to sufficient affordable clean water for hygiene purposes should be seen as part of the primary health care service.
Government is instructed to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of these rights. The reform of the water law must, therefore, put in place arrangements to ensure, amongst other things, that all South Africans gain access to sufficient water to meet basic domestic needs. This will reinforce the measures proposed in terms of the Water Services Bill to regulate the water supply and sanitation services provided by local authorities.
The reallocation of existing water uses - to improve the optimum and equitable use of water - is, therefore, constitutionally valid. This is also in line with international developments which have increased the role of the state as the public trustee of natural resources (see Section 5.1.2).
2.1.9. Co-operative Government
The management of water is, constitutionally, a national function, and the role of public trustee of our water resources is, ultimately, a duty imposed on national Government. But since this White Paper also addresses matters such as the environment and pollution control, which are concurrent national and provincial functions, the national Government will address these matters in the spirit of co-operative governance.
Chapter 3 of the Constitution describes Government in South Africa as consisting of National, Provincial and Municipal spheres which are not only distinctive but also interdependent and interrelated. It provides that all spheres of Government and all organs of State must co-operate with each other in mutual trust and good faith by co-ordinating their actions and legislation with each other. Co-operative governance and integration are not only policy matters - they are constitutionally mandated.
It is also the duty of the national and provincial governments to make sure that municipalities are effectively performing their functions, including the provision of water supply and sanitation services, and to assist them to achieve this goal.
2.2 WATER AND SOUTH AFRICA’S DEVELOPMENT VISION
2.2.1 Water and Development
Of all natural resources, water permeates perhaps most deeply into all aspects of our life. It is as essential as the air we breathe for our very survival; its presence determines the nature of the natural environment in which we live; the majority of our economic activities depend upon it. The achievement of South Africa’s development vision will thus only be possible if water resources are managed in a way which is sensitive to and supportive of the many demands which we place upon them.
The use of water to provide domestic services to meet basic needs is a high political priority. Water is used both for domestic consumption and (where waterborne sewerage is installed) to transport human wastes from the home. Public sector infrastructure investment in service provision can boost the economy and generate jobs as well as meet peoples’ needs.
However, water contributes in many other ways to national development. In most of the country, the availability of water determines whether agriculture is viable. The land reform programme must therefore be harmonised with programmes to ensure equitable access to water if the land is to be made productive. Forestry development is an important generator of jobs and income in rural areas and provides the raw material for an important industry in which South Africa is an international leader. But because trees are thirsty consumers of water, the water needs of forestry have to be balanced with those of other users.
Of the many other water demands, mining, manufacturing and power generation together use about a quarter as much water as is consumed by irrigated agriculture. Yet, the value they add and the jobs they create per kilolitre of water far outstrips those of agriculture or forestry. This does not mean that manufacturing industry is more important - agriculture plays a vital role in supporting rural communities. It does however suggest that it would not be in the interest of national prosperity to unnecessarily constrain industry’s access to water.
Most water uses also impact on the environment, and the cost of this must be accounted for in assessing the economic benefits of alternative water uses and developments. To sustain the established uses of water, the natural resource base must be suitably protected. However, within a safeguarded natural environment, the water available to support tourism and recreation also has great potential for job creation.
2.2.2 A scarce and sensitive resource
South Africa is an arid country with rainfall less than the world average very unevenly distributed across the country. With just over 1200 kl of available freshwater for each person each year at the present population of around 42 million, we are on the threshold of the internationally-used definition of water stress. Within a few years, population growth will take us below this level. South Africa already has less water per person than countries widely considered to be much drier, such as Namibia and Botswana.
Another measure of water availability is the amount of water resources already being used. In South Africa we use more than half the total water that we can afford to use, while arid Namibia and Botswana use only 5 - 10% of their available water.
Many of our largest and fastest growing water users are, for historical reasons, found at the beginning of small erratic streams rather than at the end of large, reliable rivers. As a result, the waste from human and economic activity is concentrated where it has the most severe impact. The regions where water is still relatively plentiful are often those where the nature of the land or other factors limit broader socio-economic development (such as the Tugela and Umzimvubu basins). Another limitation is the fact that many of South Africa’s major river systems, such as the Orange, Limpopo, and Komati, are shared with neighbouring countries.
There are unconventional sources of water, such as desalination, which may relieve water stress, but require large amounts of energy and are extremely expensive, although in some small projects they have already been found to be the best solution. These show that in the long run it will be financial not water resources, that impose the final constraint on our development.
Water resources cannot be managed in isolation from other natural resources. Water availability is governed by the water cycle, in which rain falls from clouds, flows over the land or sinks through the ground, where it may be stored as groundwater in underground aquifers, and finally flows through rivers, lakes and dams towards the sea. Evaporation from surface waters and the transpiration of plants and trees feeds the clouds and the cycle continues.
The use of land thus has a major impact on water resources. Similarly air pollution can gravely affect water quality. The way we use or abuse our rivers has an effect on estuaries and the ocean around our coast. Within the water resource itself, there are complex interactions between water and the sediments, banks, animals, plants and microbes (see Section 6.3) in rivers, dams and wetlands which must be taken into account in water management. Finally human activities are beginning to have a noticeable impact on our climate which could affect the amount and distribution of rainfall and rates of evaporation, all of which must be taken into account in our water resource policy.
The complexity of all these interactions calls for a complex and integrated approach to water management.
2.2.3 The Social and Economic Context
Water policy must be appropriate to the social and economic context in which it is implemented. South Africa has amongst the worst social indicators of comparable middle-income countries. In terms of income distribution we are one of the most unequal countries in the world. At least 32% of our people are unemployed.
As a result of apartheid, deprivation and poverty have strong racial characteristics. Africans have twice the unemployment of coloureds, three times that of Indians and ten times that of whites. Africans also comprise nearly 95% of South Africa’s poor. Poverty is concentrated in rural areas where nearly 75% of South Africa’s poor live.
It affects mostly women and children, particularly those living in female headed households. 45% of South Africa’s poor are children below the age of 16.
The scale of deprivation is clearly visible in the lack of water services, with between 12 and 14 million people without access to safe water and over 20 million without adequate sanitation. This impacts most heavily on women and children in rural and peri-urban areas. African women in these areas have no choice but to walk long distances to collect water, a heavy burden which impacts directly on their health. The time spent doing this could be better spent working, studying, growing food or taking part in other activities. There is a similar impact on children. Thousands of children die annually, of avoidable diseases related to poor sanitation and the lack of clean water.
Inequality in access to jobs, services and economic resources as well as other pathways from poverty, such as education, skills training and health care continue to make it difficult for people to escape from poverty. This complex of problems represents a major challenge for Government’s economic as well as its social policy.
At current rates of growth, job creation will not even keep pace with the increase in the working population. Nor can the funds available to Government cover more than 15% of what is required to achieve even modest improvements in living standards.
2.2.4 Water, Reconstruction and Development
The Reconstruction and Development Programme, the core of South Africa’s development vision, emphasises that growth and development are not opposing goals but essential pillars of a common strategy. It states that without an improvement in the quality of life of the majority of South Africans, the political conditions for growth will not exist and that without growth, the economic conditions for an improved quality of life cannot be created.
Within this framework, the key programmes of the RDP are:
-meeting basic needs
-developing human resources
-building the economy, and
-democratising the state and society.
The RDP is not about houses, services and education only. It is first and foremost about jobs and opportunities. It is intended to tackle the real crisis in South Africa that finds so many of the working age population without jobs and without the basic skills they need to become employed. It addresses the fact that the most needy people live in the areas with least opportunity.
The vision of the South Africa which we wish to leave to our children is of a country where people have opportunities; opportunities to develop their skills and opportunities to use them productively to work and earn an income with which they can at least meet their basic needs. It is a vision of a country where, because there are these opportunities, people can live at peace with one another, in dignity and security; where, because of our wise management, the environment in which we live, work and relax is healthy and pleasant and can be kept so.
This vision captures the aspirations of the majority of South Africans and forms the basis of the policy of the present Government. Its key principles have been restated in the Growth, Employment and Redistribution (GEAR) macroeconomic strategy. It thus remains an important guide to action.
The GEAR aims to boost economic growth by lowering protective barriers in a number of industrial sectors, promoting small and medium size industry and greater integration with SADC countries as well as internationally competitive manufacturing industry. It emphasises that the South African economy cannot grow merely through exploitation of crude natural resources, an approach which applies as much to water as to the more traditional area of minerals.
To address the needs of the rural poor, GEAR focuses on land reform and associated agricultural development and on the provision of infrastructure, notably water. Investment in public infrastructure is an important focus, both to generate jobs and improve the quality of life and also to improve the productivity of the economy. Key success factors in this area include the organisation of service provision in a manner which recovers their costs and facilitates the use of capital from the private sector.
2.2.5 The Development Vision for Water
Given these multiple and sometimes competing uses of water, the RDP highlighted the need for integrated management which would ensure access to water for the growing sectors of the economy and not unnecessarily constrain economic development but equally, not damage the natural resource from which the water was derived. It emphasised the importance of ensuring that our neighbours have access to their legitimate share of the resource. The law must thus address the management of water for, and the sharing of water between, all these uses before it addresses the individual uses themselves.
Water management and water law in South Africa is thus at a crossroads not just because there is a new Government with new values and new objectives but because a new reality has to be addressed. While resources were plentiful, the task was simply to harness them. Dams, pumping stations and pipelines were built to store floodwater for use in periods of drought and to redistribute it to supply the activities and areas where it was most needed which, according to the policies of the time, was in white South Africa.
This historic focus of water management has to change. Since much of the accessible resource has been developed (and there is less and less untapped floodwater reliable enough to be worth storing) the task is increasingly to manage within the constraints that are given us by nature. This transition requires new legal instruments. Thus the riparian principle which previously guided water allocation was an effective instrument for the apartheid state to encourage and assist white landowners to use water to develop their land and an agriculturally based economy. Government’s policy is now to promote the growth of industry and to increase jobs in areas such as tourism as well as to ensure greater equity in society.
The water management system and the law which underpins it must now be adapted to reflect these priorities, and to meet the needs of consumers who are more productive in their use of water. This should be done in a way which remains supportive of the agricultural economy upon which many South Africans will continue to depend for many years in the future. Above all, it should be done in a way which is supportive of the imperatives of the Constitution, which promotes equity and opportunity for all South Africans, protects their reasonable rights and upon whom it places reasonable demands.
In the years and decades to come, the same amount of water will have to be shared between a growing number of users and the demands of their developing society. The manner in which this is done will determine the success of South Africa as a society. The realities of water are shared by all. The dire warnings of the past which suggested that within 30 years, the shortage of water would paralyse South Africa’s development were wrong.
The challenge of water management in the 21st century is to ensure that the society develops in a way that can function successfully within the constraints of its resource base. It is to treat the development, use and protection of our water as a common endeavour in the interests of all, in the spirit of a new patriotism rather than as a series of conflicts between different groups. It is in this spirit that the new water law will be written.
3. THE INTERNATIONAL CONTEXT
3.1. TRENDS IN INTERNATIONAL WATER POLICY
With the ending of apartheid, South Africa’s water law review has not had to be conducted in isolation from the rest of the world as in the past. The problems confronted here are not unique, although of the 149 countries for which data is available, South Africa is presently the 26th most stressed in terms of water availability per person. Some commentators have speculated that the growing pressure on water resources will see water as a major cause of international conflicts in the next century and in the Middle East, North Africa and South Asia, tensions have already arisen.
As a result, not only is there a large amount of international thought, policy and practice which can be recast to meet the specific conditions of South Africa but South Africa’s own efforts to address water policy in a structured and principled way have attracted great interest. This is not least because our success in achieving peaceful resolution to our other problems provides a valuable foundation from which to act in the area of water policy.
Landmark international events which have influenced the direction of water management include:
These meetings began with a clear focus on meeting the needs for services of the unserved. They highlighted the fact that people had to be kept at the centre of the concern for sustainable development and that water management and development should be conducted on a participatory basis with decision making occurring at the lowest appropriate level. Attention has increasingly turned to the need to protect and sustain the water resources on which everyone depends. Particular emphasis has been given to the sustainable management of water as a limited natural resource. There is also growing recognition that greater emphasis must be placed on the management of demand for water as an economic good to make sure that water use is as efficient as possible, both in terms of the quantities of water used and the impacts on water quality .
The law review process has reflected other international developments, such as the understanding that the support of policy development, institutional reform, and capacity building are as important as capital development projects, and that in order to increase the prospects for water and food security, special emphasis should be given to conflict prevention and resolution. In a series of international meetings, South African representatives have urged other countries to use water and water policy as a focus for healing and co-operation rather than as a source of conflict and tension.
3.2. INTERNATIONAL OBLIGATIONS AND AGREEMENTS
The other important international context is that of South Africa and the neighbours with whom we share river basins and water resources (see Section 6.9). Here we take into account international custom and practice (such as the Helsinki Rules) and are also assisting to develop regional co-operation through a variety of Southern African Development Community (SADC) initiatives, including the SADC Protocol on Shared Water Course Systems.
For the first time, South Africa is playing an active part in the development by the International Law Commission of new rules to regulate the use of non-navigable rivers under the auspices of the General Assembly of the United Nations. South Africa is also signatory to several international protocols which are important for water management policy, such as the Ramsar Convention on the Protection of Wetlands, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention to Combat Desertification.
SECTION B: NEW NATIONAL WATER POLICY
4. WATER RESOURCE MANAGEMENT IN SOUTH AFRICA - PRINCIPLES AND THE POLICY VISION
4.1. THE OBJECTIVES OF WATER POLICY IN SOUTH AFRICA
Water is an indivisible national resource, but it has limited value in and of itself. We value water for the many ways in which it serves our needs and it is this, as indicated in the Principles, which guides our water policy. Specifically, Principle 7 states that:
The objective of managing the quantity, quality and reliability of the nation’s water resources is to achieve optimum, long-term, environmentally sustainable social and economic benefit for society from their use.
4.1.1. Equity and Water
This objective cannot be seen in a vacuum. Deep inequalities are a legacy which must be directly addressed during South Africa’s transition to democracy and in the new society that we are building. It is not surprising that the need for equity and fair procedures is found throughout the Principles (Principles 12, 13, 14, and 25). The principle of equity is central to the water law reform process, and special attention has been given to addressing the needs of those who were historically denied access to water or to the economic benefits of water.
Equity implies a concept of fairness which allows for different practices in the management of water in response to different social, economic, and environmental needs. It is important to identify the policies, institutions and practices that will support the principle of equity and equitable access. It is not, however, immediately obvious what we mean by equity in the context of water policy. There are, in fact, three aspects to the question of equity which should be looked at.
4.1.2. Equity in access to water services
The loudest cry in South Africa is still for safe, clean and accessible drinking water and sanitation services. Access to water at its source is, in fact, only a small element of access to water services; for these, infrastructure, technical and management skills, and adequate funds are usually the critical elements.
The most important contribution to achieving equitable access to water services is the provision of funds and the regulation and direction of the institutions whose task it is to provide the services. Access can be improved by changing the rules about access to water resources, but this will not in itself meet the needs and desires of people for whom piped water is still a dream.
4.1.3. Equity in access to water resources
What of equitable, direct access to water, for the productive purposes of irrigating crops and watering cattle? South African history is a long story of removals, expropriation, theft and occupation which has deprived people of their land. The development of water law which linked access to water with ownership of land produced a distribution of access to water which is at least as unequal as access to land. Indeed, because it was well-watered land which was most prized, access to water for use in agriculture is even more skewed than access to land.
Even water for irrigated agriculture, which accounts for nearly half of all water use in South Africa, is not widely distributed. Fewer than half of the
60 000 commercial farmers in South Africa have irrigation as the major component of their business. It is not practical nor possible to divide up South Africa’s water resources so that each person has access to the same amount of water.
4.1.4. Equity in access to benefits from water resource use
It would also not be desirable simply to divide South Africa’s water among a few million farmers. Water is the lifeblood of the economy. If all the nation’s water were to be used on the land, the wheels of industry would stop, the power stations would die, the lights of and life in the cities would go out.
What is of concern to most South Africans, and thus to the Government that they elected, is that the way in which water is allocated and used should bring maximum benefit to them, whether directly or indirectly. This must become the focus for water policy.
4.2. OPTIMUM RESOURCE USE AND PROTECTION
The Constitution places a duty on the national Government, in co-operation with the other spheres of government, to make sure that our limited water resources are used to improve the quality of life of all South Africans. These ideas are expressed in Principle 7, which describes the objectives for Government in its management of water as to achieve optimum, long term, environmentally sustainable social and economic benefit for society from their use.
The important concepts to be explored are optimum, environmentally sustainable and social and economic benefit.
4.2.1 Optimum and Social and economic benefit
In plain language, the beneficial use of water is understood to mean the use of water for a productive purpose, such as farming or industry. This was enough to evaluate water use when there was less competition for water. However, since use of water has increased, there are often a number of different and competing users who could all claim to be using the water productively in some sense.
In legal terms, the best use in these circumstances is called use which is beneficial in the public interest or, more plainly, the optimum or best possible use (and, based on the Principles, this term is used in general discussion throughout the document). The challenge is to set up a framework which ensures that our scarce water is not just used productively but optimally.
The usefulness of this idea is clearer when social and economic benefits are considered together. Individually, economic and social benefits are reasonably easy to define. If two competing uses are judged on an economic basis, the more profitable use is selected. If judged on a social basis, the use that contributes more to a desired social need (such as reduction in unemployment, better health or more attractive recreational use) will be selected.
When social and economic values are combined the problem becomes more difficult. For example, if, as a result of a water management decision, one region of the country benefits at the expense of the other, but the economy of the country as a whole expands, how is this measured from the point of view of the region that is now worse off?
In our modern world, with its many activities and interests, each with different goals, there are often a number of different, apparently best solutions to problems or decisions. The idea of optimum use weighs up different social, economic and environmental objectives and the practicality of their achievement in order to enable authorities to make the best decisions on water use.
The idea balances equity within and between generations (for example, in assessing optimum use, it must be recognised that short term economic benefits may be outweighed by long term social or environmental costs). It also recognises that benefits may flow indirectly as well as directly, and that some users may benefit from co-operation with others.
4.2.2 Environmentally sustainable
Natural water systems can experience severe floods and droughts and yet recover and return to their original state. This bounce-back capacity, or resilience, also allows them to recover from human use as well. If water resources are over-used - if too much water is taken out, too much pollution put in, or if too great structural change is made such as bulldozing of banks - they may no longer be able to recover. In this way their capacity to meet human demands can be reduced or even lost.
If the use of water resources remains within their capacity to recover, that level of use can probably be sustained in the long term. It is not necessary for a water resource to be left untouched to remain functional. The intention of environmentally sustainable water use is to balance water use with the protection of the resource in such a way that the resources are not degraded beyond recovery.
The sustainable use of water resources means that, even where the immediate demands for development are very high, society must find different development approaches which make sure that the use of water resources does not destroy their ability to recover. This approach is in keeping with Section 24 of the Constitution which states that any development and use of our natural resources (including water resources) must be environmentally sustainable. How this can be achieved and how the desirable level of use of any particular water body can be determined is discussed in Section 6.3.
The process of balancing social and economic benefits as well as of determining environmental objectives should involve those affected, or their representatives, in weighing up the options on an informed basis. This should take place within the guidelines of national policy and within a national framework. The public trust role requires that Government establishes the system which achieves this result.
5. WATER RESOURCE POLICY
5.1. THE LEGAL STATUS OF WATER
5.1.1. Background
The existing South African legal understanding of water use is based on two important ideas:
- a link between the right to use water and the ownership of land adjacent to that water (the riparian principle), and
- a separation between private and public water.
In Roman law (on which South African law is based) rivers were seen as being resources which belonged to the nation as a whole and were available for common use by all citizens, but which were controlled by the state in the public interest. These principles fitted in well with African customary law which saw water as a common good used in the interest of the community.
The Roman-Dutch law’s distinction between private and public water was just an administrative convenience appropriate to that time. Private water, drawn from small streams or wells, gave too little water to have any potential for communal benefit, and since water could only be taken from wells by hand, the definition of underground water as private can easily be understood.
The system of riparian rights (as found in the existing Water Act (54 of 1956)) was largely developed by the courts through a combination of Roman- Dutch, English and American law. This resulted in the idea of a river from which all adjacent landowners could take their share. In addition, however, because of the uncertainty and extremes of water levels in South African rivers the ideas of normal flow (which would be divided between the landowners), and surplus flow (where, in flood times, riparian owners could take as much surplus as they were able to use beneficially) were introduced.
For many years, water users (urban and industrial) who did not have access to water as a result of land ownership could only get access to water through a Water Court application (with the limitation that they meet their needs without affecting the allocations of riparian owners), or by buying land with access to water. These problems were addressed in some measure by the Water Act 54 of 1956, which provided for the establishment of Government Water Control Areas in which, in certain circumstances, the Minister could override riparian allocations.
Further state intervention was allowed for in the creation of legal controls on the amount of water that could be stored or taken from a water resource, on afforestation, and on the construction of farm dams. This was the result of a greater capacity among farmers to intercept and store water in dams, which could impact badly on water users further downstream.
In spite of these limited reforms, access to water remained heavily skewed in favour of a privileged minority of private land owners. As South Africa enters the 21st century, with the need to balance growing demands on a variable resource, the Government will continue the legal trend which began in 1956 (for very different reasons) to strengthen the role of Government as the guardian of the public interest (Principle 12).
5.1.2. Public trust
The recognition of Government’s role as custodian of the public trust in managing, protecting and determining the proper use of South Africa’s scarce water resources (Principles 12 and 13) is a central part of the new approach to water management. As such it will be the foundation of the new water law.
The main idea of the public trust is that the national Government has a duty to regulate water use for the benefit of all South Africans, in a way which takes into account the public nature of water resources and the need to make sure that there is fair access to these resources. The central part of this is to make sure that these scarce resources are beneficially used in the public interest.
Traditionally, the public trust has protected the public’s reasonable access to water, including for example, the right of the public to gain access to rivers for recreational use such as canoe portage. While South African courts have historically taken a very narrow view of these public rights, renewed commitment by Government to its public trust obligation means that South African law will return to its source and adopt a broad purposeful understanding of the public’s rights.
The national Government is committed to carry out its public trust obligations in a way which:
- guarantees access to sufficient water for basic domestic needs;
- makes sure that the requirements of the environment are met;
- takes into account the interconnected nature of the water cycle - a process on which the sustainability and renewability of the resource depends;
- makes provision for the transfer of water between catchments;
- respects South Africa’s obligations to its neighbours; and
- fulfils its commitment as custodian of the nation’s water.
The public trust therefore addresses the responsibilities of national Government in managing and protecting water resources and regulating the use of water. It will be a central concept of the new Water Act.
The idea of the public trust is not a new one to South African law. It is based in Roman law from which South African property law descends, where it was generally used to determine rights in rivers, the sea and the seashore.
The public trust is also an internationally accepted concept. In the United States, for example, the courts have overturned private water rights in order to protect inland water resources, such as lakes, on the grounds that water remains subject to the public trust. This confirms the development of the Roman law principle of the public trust, that the public trust is not just about the state’s power to use public property for public purposes, but also about the state’s duty to protect the people’s common heritage of rivers, streams, lakes, marshlands, tidelands and the sea-shore.
To make sure that the values of our democracy and our Constitution are given force in South Africa’s new water law, the idea of water as a public good will be redeveloped into a doctrine of public trust which is uniquely South African and is designed to fit South Africa’s specific circumstances.
In its role of guardian of our nation’s water resources national Government will keep the right to influence the country’s economic and social development - for the benefit of present and future generations - through the responsibility for determining the proper use of the nation’s water resources.
In allocating water in the public interest, national Government must consider the planning and development of water resources in a manner which ensures the efficient, equitable and sustainable use of the resources. The public trust doctrine will, therefore, need to be sufficiently flexible to adjust to the ever-changing nature of our water resources and the evolving socio-economic demands placed on them. It is for this reason that the policy is that water allocations should be time limited.
The public trust doctrine, the new system of the Reserve and the allocation of water use licences will form an integrated system in the new water law (see Section 6.2).
In allocating water resources in the public interest, the Government cannot be bound by past decisions which may be inappropriate in the light of current knowledge or inconsistent with current needs. This is particularly so in South Africa where the apartheid past has resulted in inefficient and inequitable water use which violates the Government’s public trust duty to ensure that water in used beneficially in the public interest. The national Government will have the power, in its capacity as public trustee, to reconsider previous allocation decisions.
The Constitution provides national Government with the sole responsibility for the management of water resources, although responsibility for certain water use sectors (such as agricultural and municipal use) and certain conservation and pollution control functions are concurrent provincial competencies. The concept of public trust is binding on all spheres of Government.
5.1.3. Water and Property Rights
The governance of water use has always, in a constitutional sense, been subject to the notion that the Government retains the right to regulate the country’s economy and the nation’s future, by reserving to itself the responsibility of determining the proper use of the country’s natural resources.
Water use allocations claimed under the Water Act of 1956 and the common law codified in that Act may be recognised in the new law to the extent that these are allocations recognised as being beneficially used in the public interest. Existing uses are inherently limited by our present common law system to the amount of water beneficially used in the public interest. Claims, allocations and uses which are not beneficial in the public interest, have no basis in the common law, nor will they be recognised under the new law.
The new water law shall provide for the regulation in the public interest of all existing claims and future allocations. To the extent that future allocations, redressing the results of past racial discrimination, result in the reduction of existing valid allocations, these reallocations will be protected by the Constitutional provisions for corrective action which specifically recognise the right of the Government to establish such legislative programmes.
5.2. PRIORITIES - THE BASIC NEEDS AND ENVIRONMENTAL RESERVE AND INTERNATIONAL OBLIGATIONS
5.2.1. Basic Needs
One of the overriding priorities of the Government is the need to make sure that all people have access to sufficient water. Part of the public trust function of the Government will be to make sure that, as principle 8 states, the water required to ensure that all people have access to sufficient water shall be reserved.
There is as yet no definition of sufficient water. The present RDP provision of 25 litres per person per day is explicitly stated as a short term target. The approach taken in the Water Services Bill is to allow for the progressive increase in the standards of basic service to be assured by local government. On this basis, it will be relatively simple to estimate the amount required for the Reserve for basic human needs using census figures, local information and technical criteria that allow for different methods of abstraction and distribution of water. The need for reliability in this supply of water must be taken into account in the calculations and provision be made for population change and improvements in basic services over time.
5.2.2 Environmental requirements
After providing for the basic needs of citizens, the only other water that is provided as a right, is the Environmental Reserve - to protect the ecosystems that underpin our water resources, now and into the future (Principle 9). It is the duty of national Government, as part of its public trust function, to assess the needs of the Environmental Reserve and to make sure that this amount of water, of an appropriate quality, is set aside.
A system is needed to work out the Environmental Reserve. There are a range of methods, some developed specifically in and for South African conditions that can be used to determine the quantity and quality of water needed, and the level of habitat protection that is needed (see Section 6.3). While the aim of protecting water resources is clear, the definition and selection of an acceptable level of protection may change over time.
The allocation of water for these two purposes is clearly distinguished from other allocations by their definition as the Reserve (Principle 10).
Mechanisms and powers needed to ensure water for these purposes must be identified and provided. In many catchments all available water has already been allocated without taking these requirements fully into account. No claim for existing water-use rights that limits the water required for basic needs will be recognised. Where the needs of the Environmental Reserve cannot be met because of existing developments, provision must be made for active intervention to protect the water resources.
5.2.3. International Obligations
A third allocation is also treated differently in the Principles, so that water allocations for downstream countries can be respected (Principle 11). South Africa will take account of all international legal obligations and agreements about water in shared river basins in a just and equitable manner. The whole shared catchment will be the basis for decision making, particularly where more than two countries are involved. Where necessary, the national Government will have the right to allocate water to downstream countries in preference to local water allocations. The approach in this regard will reflect South Africa’s general commitment to promote equitable and effective co-operation with its neighbours (see Section 6.9.1).
6. WATER RESOURCE MANAGEMENT POLICY
6.1 WATER RESOURCE MANAGEMENT ACTIVITIES
The objectives and the legal framework within which they are to be pursued, as described in the previous section, must direct the activities of water management. To do this, there must first be an understanding of what water management entails.
Historically, the major management activity has been the development of systems to store and transport water. The construction and operation of great dams, tunnels and pipelines, the local construction of systems of weirs, pump stations and irrigation canals, has symbolised what for many was the business of water management. As activities which use water have become more varied, and as the use of water has become more intense, the nature of the water management business has changed.
Today, there is as much concern to minimise the impact of other activities on water resources as there is to develop new water sources, for there is no benefit to gaining access to more water if its quality is so poor that it cannot be used. Greater attention is also being given to the efficient use of water since, with so much demand, there is little incentive to transport water long distances to one set of users if that means depriving others. There remains a concern with the administration, monitoring and enforcement of water use allocations.
To achieve the new goals, systematic monitoring and evaluation of information have become critical. With this, the tools used for achieving efficient water use and protection of the resource are no longer simple engineering methods. The application of law, economics, natural resource management approaches and the science of organisations, reinforced with the skills of communication are increasingly important.
The activities which together comprise water management have thus expanded greatly. But the scope within which they are practised has also changed and expanded beyond the rivers and lakes. This calls for a fundamental reassessment of the whole activity.
This section addresses the specific activities which together comprise water management and outlines the new policy which will guide them in the future. Section 7 addresses the organisational approaches that will be required to implement these new policy approaches.
6.2.1. Background
The legal framework within which water allocation will be made has been outlined above. The approach to the implementation of this framework will have to take account of the specific circumstances in different areas of the country.
In many areas, most of the readily available and reliable water resources are already being used under the old riparian system. This places limits on the new uses to which water can be put and constraints on other potential users. The new approach will have to enable and encourage a move towards a more optimum use of the nation’s limited water and ensure greater flexibility of allocation in the future.
The process itself will be guided by considerations of public interest including corrective action, existing infrastructural investment (where sustainable), the dependence of the rural economy on water allocations and the recognition of the indirect social and environmental costs that result from the use of water. These considerations will make sure that the introduction of the new system of water allocation does not inflict avoidable or unnecessary damage on regional economies or on particular groups such as farmers and farm workers.
The way in which the new approach is introduced will be central to the success of future water management and the new arrangements must therefore be put in place in an orderly, efficient manner. These new arrangements will have to focus first on the areas where competing demands on the resource are greatest, requiring a phased introduction. The manner in which they are introduced must not cause uncertainty and thereby hamper economic activity. Transitional provisions will therefore have to be included to ensure that, at all stages in the process, water users are clear about what they can and cannot do.
The system will have to be administratively feasible and able to deal with the estimated:
- 40 000 permits, allocations, or scheduling provisions in terms of the existing Water Act;
- 800 water court orders covering water use on perhaps 30 000 properties;
- five million boreholes, ten percent of which are for irrigation or provide over 150 kl of water daily.
6.2.2. Allocation Licensing Policy
Under the new system, existing water users will have to apply for registration of their water use within a set time period. These applications will be examined and, where justified and possible, converted into a licence under the new law. (Once this period is over, all applications will be treated as new applications).
After providing for the Reserve and international obligations, the basis for granting a licence to use water available in the area will be to achieve beneficial use in the public interest which will include consideration of the need for programmes of corrective action. Any allocation of water for transfers to other basins will be subject to conditions which ensure that reasonable needs in the donor catchment are met.
Between the application for registration and the granting of a licence (if any) there will be a transitional period during which existing use of water which was legal under the Water Act 54 of 1956 will be allowed to continue. If no application is made for the registration of an existing water-use, it will be assumed that that use has been abandoned and the water will be considered to be available for allocation.
Licences to use water will be granted for a period of time appropriate to the particular use. Long term crops or industrial uses that involve substantial infrastructure investments with long time horizons will be given longer term licences. To facilitate the process of allocation and review, licenses will be granted on a five year cycle with a maximum length of forty years.
Holders of licences will be able to apply for a licence renewal during the period that the licence is valid. New applications will be considered at the same time as applications for renewal. Where new applications compete with existing uses, the criteria which will guide the granting of renewals or new allocations will include the Reserve, equity and the optimum use of water.
The proposed system could function on a purely administrative basis but water pricing could also be used to assist in the allocation process. The system would also be compatible with provisions for creating a market in water use allocations should that become desirable in the future (See Section 6.5.3).
Licensed users (including those who have applied for licences for existing uses) will have both privileges of use and responsibilities and will be subject to various charges, including a catchment management charge which will assist in funding the allocation system (see Section 6.5.2).
6.2.3. Allocation Licensing Procedures
Applications for registration will be assessed in a sequence of priority areas. Areas under water stress, in which competition between users, damage to the environment or prejudice to neighbouring states is noted will generally be considered first.
In an area designated for licensing, consideration will be given to the requirements of the Reserve, international obligations, long term planning requirements for inter-basin transfers as well as existing uses. In this process, Principle 20, which takes account of investment in existing infrastructure, will guide decisions and will inform the period for which an initial allocation will be licensed.
Before any allocation of available surface or groundwater can be made, the resources will have to be assessed. In some areas, there is already enough information, in others, preliminary estimates based on limited information will have to be used. In these cases, provision may be made for future adjustments when further information has been collected.
In general, allocations should be specific in terms of the location of water use, the volume of water to be used, the time at which it is to be abstracted, its quality and reliability. Since it may not always be possible to specify direct measures of volume, duration and quality of water to be used, indirect methods of allocation such as the authorisation of areas and/or methods of cultivation, size of storage dams, and pump capacity may be used as well as general standards of quality for a particular area.
There may be circumstances in which users are unwilling or unable to pay for their water use. Unless eligible for a specific programme of corrective action (see Section 6.5.3) these users will not be registered under the new allocation system and will be regarded as occasional. Water use under these conditions may be terminated or allocated without prior notice to any other user or potential user who applies. In those areas in which the supply of water is still greater than the demand, water users will be given the opportunity to register, which will oblige them to pay the catchment management charge, but which would also secure their use of that water for the time period of the license.
In areas which are not initially subject to registration, existing uses in terms of the Water Act and other law will not immediately be affected but will be deemed to be use authorised in terms of the new system and will continue until such time as the area is designated for allocation.
Appropriate mechanisms will be created to make sure that there is procedural fairness in all allocation decisions and the development of appropriate dispute resolution mechanisms will make sure that the new system meets all the requirements of administrative justice (see Section 7.2.7).
6.2.4. Application to Groundwater and Indirect Land Uses
All allocation procedures will apply to groundwater which is, particularly in the more arid provinces such as Northern Cape and North West Province, a critically important resource. However, since groundwater is also a relatively poorly understood source of water whose management is a complex matter, special provisions may be necessary (See Section 6.6.3). The general approach will initially be to refrain from making formal allocations except where there is clear evidence that groundwater abstraction is impacting negatively on other water users and on the environment.
Similarly, in terms of the policy, provision will be made to licence land uses which substantially impact on the availability of water in an area. This is already being done for forestry and consideration will be made to the extension of the approach to other land uses where it can be shown that these significantly impact upon other water users. The existing afforestation permit system will be integrated into the new allocation system and existing permits will be honoured.
6.3. PROTECTION OF WATER RESOURCES
6.3.1 Background
We rely on water resources not only to give us water for domestic purposes, agriculture or industry but also to provide certain silent services. These include the removal and purification of wastes, the commercial and subsistence supply of food and plants, the retention and storage of water and the transport of floods as well as opportunities for recreation and ecotourism and the conservation of biodiversity through the maintenance of habitats.
All of these services are benefits of water resource utilisation. If water resources are over-utilised for short term benefit, or if water resources are degraded due to the impacts of waste discharges and land use, they can lose their ability to sustain utilisation in the long term. Hence it is essential to protect water resources in order to ensure their sustainable utilisation.
The Constitution entitles South Africans to expect that their environment, including their water resources, will be protected from unsustainable use and harmful impacts. The establishment of the Environmental Reserve is an important step in this direction since, under previous legislation, there was only limited provision to reserve a quantity of water for environmental protection purposes. The challenge now is to translate the concept of the Reserve into practical policy and to make provision to ensure that the environmental objectives of water resource management are attained.
6.3.2. Resource Quality and Protection
The water and water-related services which people use are not dependent only on the physical and chemical characteristics of the water itself, but on the healthy functioning of whole ecosystems, such as rivers, lakes, dams, wetlands, estuaries or the coastal marine environment. The term resource quality is used to include the health of all of the parts of a water resource which together make up an ecosystem, including plant and animal communities and their habitats. It is the healthy functioning of the whole ecosystem which gives a water resource its ability to recover from droughts, floods and the impacts of human use. Therefore the most effective approach is to use receiving water quality objectives as the basis for water environmental quality management.
In setting the Environmental Reserve, we must therefore seek to identify and provide for all the factors needed for a water resource to function: the quality, quantity and reliability of water; the physical and vegetation aspects of habitat in the water and on the banks; and the numbers and kinds of plant and animal communities - and their interactions - that allow resources to function.
For effective resource protection, two separate sets of measures are required. The first are resource-directed measures which set clear objectives for the desired level of protection for each resource. The second are source-directed controls which aim to control what is done to the water resources so that the resource protection objectives are achieved. These include source reduction measures which aim to reduce or eliminate the production of potential pollutants which could harm our water resources.
6.3.3. Resource Protection
A national resource protection classification system will be introduced. Through a process of consensus-seeking among water users and other stakeholders, the level of protection for a resource will be decided by setting objectives for each aspect of the Reserve (water quality, quantity and assurance, habitat structure, and living organisms). The objectives for each aspect of the Reserve will show what degree of change or impact is considered acceptable, and unlikely to damage a water resource beyond repair.
Resources will be grouped into a number of protection classes, with each class representing a certain level of protection. Where a high level of protection is required, the objectives will be strict, demanding a low risk of damage and the use of great caution. In other cases, the need for short to medium term use may be more pressing and the need for protection lower. Some resources may already need action to restore them to a healthy state, and, in future, no resources should be allowed to become irreversibly degraded.
At the same time efforts to introduce source control will be strengthened, through permits and standards, and through changes in technologies and land-use, with the final aim of getting as close as possible to a situation in which there is no discharge of pollutants into our water.
While the approach proposed emphasises the involvement of water users and other stakeholders in establishing the resource protection objectives, the public trust places the responsibility on Government to make sure that environmental interests are represented and that the resource is effectively protected.
As with the new allocation system, the classification system will have to be phased in over a reasonable time and may begin with pilot projects in selected rivers and important catchments. These may be selected to coincide with those chosen to start the new allocation system.
6.3.4. Source Directed Controls and their Enforcement
Almost every activity which takes place on land affects our water resources in some way. To control these impacts on the resource, planning must be based on water catchment rather than political borders. Actions that cause or contribute to decreasing resource quality can only be controlled if water- and land-users change their behaviour. They will therefore be encouraged to choose and develop technologies that meet the standards set by Government and to develop appropriate codes of practice.
Procedures for consultation in this regard will be put in place to allow Government to protect human and environmental health in relation to water quality and quantity.
Since serious impacts such as hazardous waste spills (see Section 6.7) may be beyond the capacity of local or provincial government, the system of co-operative governance must allow the national Department to provide assistance so that local and provincial authorities are able to deal effectively with emergency situations. The Minister will establish procedures in order to encourage and coordinate the response to serious incidents that threaten the nation’s water resources.
Offenders must be prosecuted speedily, avoiding the delays which occur under the existing system. Consideration will be given to the possibility of giving the national Department, which manages the resource protection function, the power to carry out its own prosecution of people or organisations who break the water law. Penalties for serious offences will reflect the extent and nature of the damage, and must include provision for the recovery of the costs of repairing the damage.
On a wider scale, the Government agency responsible for water resource protection must be able to influence or prevent land use planning decisions which could lead to unacceptable impacts on water resources. Consideration will also be given to the control of other activities which can have serious impacts on water resources but over which water managers currently have no direct control, such as radioactive pollution, and the disposal and importation of hazardous wastes.
Protection of water resources will be enforced through a system of source-directed measures, including the registration of sources of impact, standards for waste discharges, best management practices, permits and impact assessments. The use of directives and fines, and the ability to suspend or revoke permits and licenses, are effective options for dealing quickly and effectively with cases of pollution. The use of regulatory measures to control damage to resource