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WATER RIGHTS AND TRANSFORMATION

Michael Jackson, Cox proportions indicated, by South
Yeats Attorneys African blacks.
In the Government Gazette
he battle of 17 November 2023, the
for the National Water Amendment Bill
Tcontrol was published and the public
and ownership is invited to submit comment
of water rights within 60 days.
appears to be
heating up. The trading of water rights
The call for permitted by the Constitutional
expropriation Court is now to be prohibited.
of land Section 25 is to be amended to
without compensation was a allow the holder of a water use
theme of the 2019 elections. Is to apply to transfer the water
the reallocation of water rights use for a period not exceeding
on racial lines going to be a 24 months to use that water for
theme for the 2024 elections? the same or different purpose in
It is important to understand the same vicinity or to apply for
the context. a new licence on land belonging
to him or her. A new Section
The Freedom Charter, which is to be added which expressly
the ANC Congress adopted in prohibits trading in any form.
Kliptown in 1955, called for
all land and natural resources Sections 26 and 27 of the Act
to be returned to the people are to be amended clarifying
and redivided. When it the obligation to redress the
came to negotiating the final results of past racial and gender
Constitution in 1994, some 40 discrimination. The Minister
years later, the same call was will be entitled to prescribe
made. Nonetheless Section the 2-year period immediately Some 25 years have now passed, of a water use entitlement, in regulations on the criteria to
25, the property clause of the before the Act came into force and the progress in converting order to facilitate a licence be considered when redressing
Constitution, was the most (an existing lawful water use) old lawful water uses into application, was permissible. the results of past racial and
hotly debated and the last to could continue with the existing licences has not yet occurred. The Constitutional Court gender discrimination and a
be resolved. A compromise lawful water use until this right There has therefore been no affirmed the right of private responsible authority must
was reached between the call was replaced by a licence. In the meaningful reallocation of persons to trade and do now prioritise the redressing
for all natural resources to be licencing process, which would water rights. As an interim step, anything which the law does of past racial and gender
redistributed to the people replace any existing entitlement water uses have been registered not prohibit. discrimination when deciding
and the private ownership of including an existing lawful with the Department and the on the issue of licences.
Just after the Constitutional
property and natural resources. water use, the responsible Department has gone through Court handed down its Although nearly everyone
Ownership of property, which authority is entitled to reduce a process of verifying existing judgment, the Minister accepts the importance
included all natural resources existing allocations so as to lawful water uses. of Water and Sanitation of addressing historical
imbalances, the statutory
such as minerals and water, meet, inter alia, water assigned Recently, there have been published, for public comment, interventions introduced
was protected subject to the for the reserve (environmental a number of important draft regulations regarding since 1994 have not achieved
exception that the State was and basic human needs) and developments which indicate procedural requirements for much mainly because of a lack
obliged to take reasonable, the water which needs to be that the hiatus is coming to an water use licence applications. of implementation. The Act,
legislative and other measures allocated to those who need end. Instead of following the In new water use licence passed in 1998, provided all of
to enable citizens to gain access to be allocated water so as to licencing process contemplated applications, the regulations the mechanisms required to
to natural resources on an redress the results of past racial by the Act, the Department stipulate that the responsible achieve reform in the sector.
equitable basis. In particular, and gender discrimination. is seeking to introduce new authority must give preference Reform was not achieved
the State was obliged to adopt Section 22(6) of the Act states measures to achieve the to applications from black because the Act was never
measures to achieve land, that a person who has applied redistribution of water rights. people, followed by women. properly implemented. The
water and related reform to for a licence in respect of an A contentious issue has been A table is contained in the recent further attempts to
redress the results of past existing lawful water use and whether the Act allows the regulations stipulating that, intervene in the sector display a
racial discrimination. trading of water entitlements.
who is granted a licence for depending on the volume of lack of understanding and most
The National Water Act a lesser use than the existing Section 25 of the Act allows a water or the area of land to be likely will simply result in a
(the Act), which was passed lawful water use, resulting person, who holds a water use, irrigated, the percentage of withdrawal of investment.
to surrender that entitlement in
in 1998, was the first piece of in prejudice to the economic favour of another private user the shares allocated to blacks Whilst the initiatives in the
legislation to do so. The Act viability of an undertaking in who makes application for a must range from 0% to 75%. water sector may be appealing
changed our water law from a respect of which the water was licence. This was interpreted to The usage covers taking water for gaining votes in the 2024
system whereby water rights beneficially used, may claim allow the holder of a water use from a water resource, storing elections, they are unlikely
were privately held to one compensation for any financial to sell or trade that water use water, and the use of land for to grow the irrigation and
where the State became the loss suffered. A discount to to a person who needed a new afforestation. forestry sectors and with it, the
public trustee of the nation’s market value can be justified if water use and was applying for These provisions are not reallocation of water rights.  .
resources and the State, as a the purpose is to address past a licence. practically possible to
public trustee, became the imbalances. implement. Many of South
responsible authority to issue When the Act was passed, it In 2018, the Department of Africa’s farms are owned by Should you require advice or assistance,
please contact
water use licences. Water Services issued a legal trusts and not by companies. Michael Jackson on
was intended that the licencing services circular that Section 25
In order to overcome any process would follow shortly of the Act does not allow for the Large farming operations T: +27 (0)31 536 8512
E: mjackson@coxyeats.co.za
argument that this new legal thereafter. It was in the licencing trading of water entitlements. may be conducted by a listed W: www.coxyeats.co.za
structure constituted an process that redistribution company and some of the listed
expropriation of water rights, would occur and if there was In March, the Constitutional companies are listed not only
Section 34 of the Act provided any acquisition of rights so Court handed down judgement in South Africa but on foreign
that a person who held a right as to redress past imbalances, confirming that the payment of exchanges. It is not possible
to water at any time during compensation would be paid. a fee in respect of the surrender for these to be owned, in the

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