1. Demographic background
Water is a scarce commodity in South Africa, which is regarded as one of the 20 most water scarce countries in the world. (1) Although South Africa is rich in minerals and other natural resources, it has only a few navigable rivers and natural lakes. Consequently most South Africans have to rely on rain water for household, industrial and agricultural use. At this stage water for the economic and industrial heart of South Africa, Johannesburg and Pretoria, is mainly bought from Lesotho. The average annual rainfall varies from 2500 mm. at the narrow eastern and southern coastal belts to less than 200 mm. at the arid areas of the Karoo and Kalahari. In addition, hot dry conditions result in a high evaporation rate. (2) It is estimated that at the present population level of more than 50 million people there are less than 1200 kiloliters of fresh water available per person per year. Approximately 18.7% of South Africans do not have access to piped water and almost 8.6% people are without adequate sanitation, mostly in rural areas. (3)
The National Water Act 36 of 1998 was promulgated on 1 October 1998. (4) It was the result of a prolonged process of research and negotiations since 1995 to change the South African water dispensation of private water rights to one where the socio-economic demands of environmental management and access to water for all people were as far as possible met. (5) The water reforms were regarded as an essential process to address the inequality of water allocation in terms of the previous dispensation and to plan in a responsible manner for future use of water as a limited resource. (6) An important factor in this process was the growing demands to deliver clean water to all South Africans, which demands were based on constitutional rights and international law. (7)
2. The origin of private water rights
According to the classical Roman law, water was classified as res extra commercium, or nonnegotiable things, which could not be privately owned. The Romans distinguished between perennial rivers and the temporary flow of rain-water, which were respectively classified as res publicae and res communes omnium. (8) Although a river could not be privately owned, the bank of the river could be privately owned by riparian owners. (9) However, the riparian owners could not restrain members of the public to obtain and use water from the river.
This distinction was maintained in Roman-Dutch law in a somewhat changed form. Water in non-navigable streams, as well as spring water on land, was regarded as water at the disposal of the landowner, while water in navigable streams was regarded as respublicae. (10) Therefore, water in navigable streams was at the disposal and use of everyone who had access to the stream. The state as dominus fluminis (custodian) had the right to control and regulate the use of water in navigable streams. (11) These principles formed part of the reception of Roman-Dutch law in the Cape during the 17th and 18th centuries and were subsequently applied in South African law. (12) Since 1873 the English principle of riparian ownership was introduced by the decision of Lord de Villiers in Hough v. Van der Merwe, (13) which decision was the basis of the allocation of water rights to riparian owners. (14) Landowners were furthermore entitled to spring water on their land. Consequently the state played a negligible role in the allocation of water rights and the development of water resources. Since the promulgation of the Irrigation and Water Conservation Act 8 of 1912 a distinction was made between public and private water. (15) This distinction was based on the principle that spring water on land, as well as water flowing over land, (16) could be used as private water by a landowner on condition that the water should also be available to lower-lying owners. Water in public streams (17) was regarded as public water, and the use of such water was regulated by the 1912 Act. …