WATER LAW AND THE

ENVIRONMENT
 INTRODUCTION

 Acc to the NWRS of 2004:

 SA is located in a predominantly semi-arid part of the
world
 SA has an ave rainfall of 450mm/a compared to the
world ave of 860mm/a
 As a result SA’s water resources are scarce and
limited.
 Intro 2

 Based on the aforesaid, SA relies primarily on surface

water resources* (urban, industrial and irrigation
requirements)
 In 2004 the NWRS indicated that of the 19 WMAs in SA, 10
were in deficit and
 By 2006 only 6 of WMAs were in surplus
 For this reason, the DWA released the IWRP
 Aim: to address the water resource situation
 Purpose of report: Where water management areas are
not currently facing water shortage most will be facing
shortage in the absence of appropriate intervention
 Intro 3

 Until recent:
1. Water law has been developed inappropriately
2. Access to water rights has been to the detriment of the
majority of the population
 Since SA 1994 however water law was reformed to
address:
1. Equitable access of water
2. Gov. to exercise management control over water
resources
<NATIONAL WATER ACT 36 OF 1998>
 Content Breakdown

1. Brief History of SA water law

(a) The Water Act 54 of 1958
(b) The transition from the Water Act to a new water law

2. The National Water Act 36 of 1998

(a) Water pollution and release of effluent

3. The Water Services Act 108 of 1997

 Content Breakdown 2

4. The National Water Resources Strategy (NWRS)

5. Implementation challenges
(a) Over- bureaucratisation of the Act
(b) Water rights, the constitutional property clause and
compensation for expropriation*
(c) The right of access to water and a basic water supply
(d) Water quality concerns

6 Conclusion
 1 Brief History

 When the Dutch Ruled (1652 -1910)

 The common changed (decisions taken by the
Supreme Court)
 From a position where the State was dominus fluminis
(State had the right to allocate water)
 To one where riparian rights* were the dominant
standard
1 (a) The Water Act 54 OF 1956

 The Water Act was enacted during apartheid, and did

not replace the riparian rights system.
 This led to the majority of South African’s (black
people) being restricted in their access of water.
 The Act made a distinction between private and
public water
 Water Act Continues 1…

 Private water: ‘all water which rises and or falls naturally

on any land or naturally drains or is led onto one or more
pieces of land which are the subject of separate original
grants, but is not capable of common use for irrigation
purposes’.
 Thus, the owner on whose land private water was found
had exclusive use and enjoyment of such water, provided,
he does not pollute it.
 Also, the sale or disposal of private water was prohibited,
provided, that the Ministry of Water Affairs grants a permit
to do so.
 Water Act Continues 2…

 Public water: ‘any water flowing or found in or derived from the

bed of a public stream, whether visible or not’.
 Public stream: ‘a natural stream of water which flows in a known
and defined channel, whether or not such a channel is dry during
any period of the year and whether or not its conformation has
been changed by artificial means, if the water therein is capable
of common use for the irrigation on two or more pieces of land
riparian thereto which are the subject of separate original grants
or on one such piece of land and also on [state] land which is
riparian to such stream, provided that a stream which fulfils the
foregoing conditions in part only of its course shall be deemed
to be a public stream as regards that part only’. *
 Water Act Continues 3…

 The right to use of public water was divided into

three categories:
1. Agricultural purposes
2. Urban purposes
3. Industrial purposes
 Water Act Continues 4…

 Only the riparian owner had the right to use the water
resource with respect to agricultural and industrial
purposes
 The riparian owner had the right to use all surplus water
for the benefit of agricultural and industrial purposes
 The use of public water for industrial purposes was subject
to a permit.
 However, public water could be used for any of the
defined categories, provided that such usage was benecial
and did not amount to wastage.
 Water Act Continues 5…

 Ground water: which is found underground could

either be public or private.
1 (b)The transition from the Water
Act to a new water law

 Constitution
 S24: Environment.-Everyone has the right-
(a) to an environment that is not harmful to their
health or well-being; and
(b) to have the environment protected, for the benefit
of present and future generations through
reasonable legislative and other measures…
 Transition continues 1…

 The right to water is provided for in s27

(1) Everyone has the right to have access to -
 (a) ….
 (b) sufficient food and water…
 (2) The state must take reasonable legislative and
other measures, within its available resources, to
achieve the progressive realisation of each of these
rights.
 Transition continues 2…

 The new water legislation must be considered within these

two rights
 This, however, are not the only relevant fundamental
rights with regard to access to water.
 Others include: s9, s10, s11*
 Further, water falls within the exclusive national legislative
competence*
 This reflects the national importance of water (the state is
the custodian of the nation’s water)
 Control body for Water: national Dept of Water Affairs and
Forestry
 Transition continues 2…

 Fundamental principles underlying the new Act:

1. Govn. must be the custodian of water resources in
order to effectively manage a critical strategic
resource
2. All South Africans must have equal access to water
3. The hydrological cycle is a single system
4. International dimensions of SA’s water resources
and the rights of neighbouring countries are
recognised.
2 The National Water Act 36 of 1998

 s2: purpose of the Act is to ensure that the nation’s water

resources are protected, used, developed, conserved,
managed and controlled in ways which take into account,
which include the following factors:
(a) meeting the basic human needs of present and future
generations
(b) Promoting equitable access to water
(c) Redressing the results of past racial and gender
discrimination
 NWA Continues… 1

 Act provides that national government is the public trustee

of the nation’s water resources
 Requires it ‘to ensure that water is protected, used,
developed, conserved, managed and controlled in a
sustainable and equitable manner, for the benefit of all
persons and in accordance with its constitutional
mandate’.
 The Ministry of Water Affairs and Forestry is responsible to
‘ensure that water is allocated equitably and used
beneficially in the public interest, while promoting
environmental values’.
 NWA Continues… 2

 In order to meet these objectives the Act has several innovative

features that are departures from past practice
 1. CATCHMENT MANAGEMENT AGENCIES
- Catchment management must be carried out in acc with the
national water resource strategy which det how the nation’s
water resources are to be ‘protected, used,developed,
conserved, managed and controlled’.
- The strategy is intended to set out the ‘strategies, objectives,
plans, guidelines and procedures of the Minister and institutional
arrangments relating to the protection, use, development,
conservation, management and control of water resources
within the framework of existing relevant government policy’.
 NWA Continues… 3

2. WATER RESOURCES CLASSIFICATION SYSTEM

- This involves the determination of the class of the water resource and the relevant
resource quality objectives
- Determination is relevant to the notion of the Reserve, which means:
(a) ‘ quantity and quality of water required-
to satisfy basic human needs by securing basic water supply, as prescribed under the
Water Services Act for people who are now or who will, in the near future, be
(i) relying upon;
(ii ) taking water from; or
(iii ) being supplied from,
the relevant water resource: and
(b) to protect aquatic ecosystems in order to secure ecologically sustainable
development and use of [he relevant water resource:
 NWA Continues… 3

 Pending a final determination of the Reserve, the Act

provides for a preliminary determination, which is a
necessary prerequisite for the authorisation of a
water use
 ‘water use’: widely defined by the Act to not only
include ‘use’ of water but also activities that could
have an adverse impact on water resources.
 ‘Water use’ is defined in s21
 NWA Continues… 4

 The Act provides that a person wishing to use water

must be licenced to do so, except in three situations-
 First exception: uses of water that are likely to have
sufficiently insignificant impacts on water resources.
 Second exception: applies if the water use is a
continuation of an existing lawful use.
 Third exception: water use permissible in terms of a
general authorisation
 NWA Continues… 5

3. VARIOUS INSTITUTIONS
(a) CMA: to decentralise management form the national
Dept to various management areas throughout the
country.
(b) Water User Associations: not designed to carry out
water management functions but to ‘operate at a
restricted localised level, and are in effect co-operative
associations of individuals water uses who wish to
undertake water-related activities for their mutual
benefit’.
(c) Advisory Committees: performs primary functions
 NWA Continues… 6

(d) Water Tribunal: handles dispute resolutions

: Appeals are heard by the HC
4. ENFORCEMENT
- The Act criminalises several activities including failure to
comply with the conditions attached to permitted water
uses and water pollution. Maximum penalty is a fine OR
five years imprisonment.
- Compensation is offered by a court to any person who
suffered loss resulting from non-compliance of the Act.
2 (a) Water pollution and release of
effluent

 s115- to pollute as an offence

 s19- provides for the prevention and remediation of
the effects of water pollution by imposing a duty on
landowners or persons in control of land on which
water pollution threats arise to take all reasonable
measures to prevent any such pollution from
occurring, continuing and reoccurring.
3. The Water Services Act 108 of 1997

 The Water Services Act works in tandem with the

NWA
 Main objectives (a),(b)…
 To implement these obj, the Act est several water
services institutions
(water services authorities, water services providers,
water services intermediaries, water boards and water
service committees)
The Water Services Act Continues…1

 s3- everyone has the right to access to basic water

supply and basic sanitation.
 This gives effect to the right contained in 27 of the
Constitution
 Every water services institution is required to take
reasonable measures to realise these rights.
 4. The National Water Resource
Strategy (NWRS)

 Strategy is est ito s5 of the Act

 Revolves around three fundamental obj of managing
SA’s water resources:
 1….
 2….
 3….
 The NWRS Continues 1…

 Chap 3 (Part 2)- deals with authorised (licensing) water use

 Chap 4- water pricing and financial assistance
-Part 5: Water Management Institutions
-Part 6: addresses Monitoring and Information
-Part 7: disaster management (particularly wrt dam safety,
floods and droughts and water pollution)
-Part 8: ‘Anticipated programme of implementation
activities’*
-Part 9: functional implications are considered here
 The NWRS
Continued 2

 Chap 4- Complimentary strategies

- Focuses on expertise among practitioners in the water
sector, educating and creating awareness among
stakeholders and water research.
Chap 5- deals with National planning and co- ordination and
international co-operational in water management
- Recognises that the Act has important interrelationships
with other legislation (WSA and NEMA)
- Further, that co-operative relations with other institutions,
local and international are required for effective
implementation of the strategy.
 The NWRS Continues… 3

 The NWRS is a comprehensive and dynamic

document that can be changed, depending on
changes in circumstance.

 It is also required by Statute that this document be

reviewed periodically.
5 Key Implementation challenges

(a) Over- bureaucratisation of the Act

- Likely to be inadequate capacity to carry out the
licencing system effectively ( corruption and
maladministration)
(b) Water rights, the constitutional property clause and
compensation for expropriation
 Water rights

 The concern for existing water-rights holders

- If the deprivation of water will be lawful and
- Whether those deprived of water rights will be
compensated?
To answer these two questions a consideration of the nature
of existing water rights have to be determined.
- The requirement of compulsory licencing, could lead to
water users’ current allocations extracted from common law
and not subject to being reduced or removed.
 Expropriation

 The question is then whether such reduction or removal of

an existing allocation is an expropriation of water rights.
 In a Harksen v Lane NO case it was held that expropriation
consists of a transfer of property to the State.
 Also stated that, the measures adopted by the State under
the NWA, which may have the effect of reducing or
extinguishing existing water allocations, does not involve a
transfer of rights to the State, and thus, water rights would
not be expropriated.
 Compensation

 As held in Harksen v Lane NO

- Reduction and removal of existing water rights does
not amount to expropriation, therefore, there is no
Constitutional to compensation
 The NWA, however, does provide for compensation
- Ito s22: Water Tribunal will determine th amount
payable
Constitutional property clause

 Based on the aforementioned

 The NWA is unlikely to infringe the right of property in
s25 of the Constitution
(c)The right of access to water and a
basic water supply

 Free Basic Water Programme

-Objective: to provide everyone with access to water
 (d) Water quality concerns

 In 2004, there were three main areas of water quality

concerns
1. Salination*
2. Eutrophication*
3. Water abstraction and impoundments
4. Proliferation of alien species* (both plants and
animals)
5. Water pollution (created though sewage and waste
water systems)
 Water quality concerns 1

 Water quality issues are linked with water use, since

not only must there be enough water to meet the
needs of both humans and the environment, but the
quality must be of such that it can sustain those
needs.
 6 CONCLUSION

 As seen, the NWA is a comprehensive and ambitious instrument

aimed:
-at achieving effective, sustainable management of SA’s water
resources and
- To ensure not only that all people have sufficient access to a
scarce resource but also that there is enough water available to
meet environmental needs.
 The Act relies on a considerable administrative endeavour which
is not capable of being nor intended to be implemented
immediately
 Thus, we will only be able to appreciate and reap the full
benefits of the new legislation several years into the future.