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:
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.
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.
2.2.1 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 per cent 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 per cent of South Africa’s poor live.
It affects mostly women and children, particularly those living in female headed households. 45 per cent 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 per cent 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:
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.
3.1. 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.
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.