Water Law in a Democratic South Africa: A Country Case Study Examining the Introduction of a Public Rights System
Stein, Robyn, Texas Law Review
"Amanzi Ayimpilo-Water is Life-It is indispensable to survival and there can be no livelihood, no growth, and no economic development in its absence. In this drought prone, water scarce country, it is our responsibility to ensure water security for all time. "1
The National Water Act3 has effected a transformation of the regulatory regime governing water resource management in South Africa. It has abolished a private rights system of water allocation and has introduced a public rights system. The Act ensures that water is treated in an integrated fashion and "is a resource common to all" wherever it occurs in the hydrologic cycle.4
This Article examines the South African national government's role as public trustee to the nation's water resources. The public trust doctrine forms the cornerstone of the public rights system introduced by the National Water Act. The doctrine has also provided a mechanism for the state to give effect to certain constitutional obligations, such as its duties to provide equitable access to water, environmental protection and sustainable resource use, justifiable social and economic development, and effective recognition of the country's international obligations.
II. A Brief Description of the Context for Water Law Reform in a Democratic South Africa5
The National Water Act governs integrated water resource management in South Africa. The Act is directed at regulating fresh water in its natural or raw state wherever that water arises, falls, or is found within the hydrologic cycle.6
In October of 1998, the National Water Act repealed and replaced a large body of water law inherited from South Africa's colonial and apartheid past.7 Under the colonial and apartheid regimes the allocation of water-use rights was determined on a racially discriminatory basis. This is primarily because the distribution of water-use rights was inextricably linked to land access. Aggressive and oppressive land dispossession programs gained momentum at the turn of the 1900s,8 when legislation that aimed to prevent black South Africans from acquiring, holding, or disposing of real property was introduced.9 The inherited water legislation paid attention to neither access to nor distribution of water for the basic human needs of dispossessed persons.10
Consequently, at the advent of democracy in South Africa, there were approximately 12 to 14 million people without access to safe water and over 20 million without access to adequate sanitation.11 The bulk of the negative impacts of inequitable and inadequate access to safe water and sanitation were, and continue to be, borne by women and children in the country's rural areas. To this day, water-borne diseases such as cholera, infectious hepatitis, and typhoid, present significant health risks to the country's rural population.12 Thus, the reform of South Africa's water law, which may have been mandated as long ago as June 1955,13 was of urgent national importance-a life and death matter.
Reformation of South African water law was also needed for reasons other than redress of apartheid. South Africa is an arid country "where rain falls unevenly in space and time."14 The Department of Water Affairs and Forestry predicts that South Africa will be classified as a "water stressed" country by 2025.15 The urgent development needs of South African society demand that management of the nation's scarce water resources should be reexamined, with social, economic, and environmental factors taken into account.16 Consideration of needed conservation options was long overdue, but the inherited legislation did not allow for the implementation of such options.17 The consequence of the old laws had been supply-side management designed to support particular sectors of white South African society, mainly large-scale irrigation in the agricultural sector.18 These laws facilitated the implementation of capital-intensive engineering projects, primarily dam building, which inevitably had, and in some cases still have, negative impacts on the environment, on other water users, and on human settlement patterns. …