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.
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.
5.1.1. Background
The existing South African legal understanding of water use is based on two important ideas:
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:
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.
5.2.1. 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).