21 years ago the government expropriated all water rights in South Africa. It is time to deliver the sustainable, equitable distribution that was promised, writes Mark Rountree
South Africa’s water legislation is 21 years old.
The National Water and Sanitation’s motto of “some for all, forever”, speaks to the underlying two key principles of the 1998 Water Act: equitable sharing and sustainable management of our common, finite water resources.
A plan to implement this legislation may, at long last, have finally arrived.
Under apartheid, South African water rights were based on Dutch riparian water rights.
It allowed those who owned the land to also own the water flowing past it, with little regard for downstream users or the environment.
Our historic systems of unjust land and water rights required a more equitable sharing of water system to be put in place.
In addition, climate change and droughts were making sustainable management of water resources increasingly critical.
When the 1998 National Water Act was enacted, all water resources in the country were nationalised: expropriated overnight – without compensation – to become state assets.
The basis for the new water allocations is now at the catchment level and the system of allocation, at least in theory, is to ensure sustainability and basic rights to access.
Some water must always be reserved for the environment and for basic human needs – for those people who are directly dependent on rivers for water, and for the maintenance of the environment upon which they are dependent.
Once this so-called “Reserve” is determined, the remaining volume of water in each catchment is allocated to water users like towns and cities, industry and agriculture. The “Reserve’ is the only priority right to water in the Act – use of the remaining water is only permissible through the allocation of licences by the national department.
If all the water in a catchment was put in to a bucket, the Reserve is the amount that must always be left in the river to cater for minimum environmental and basic human needs.
The remainder of the water is then allocated to water users in the catchment through a system of licences
This system of water rights allocation was viewed as extremely progressive, becoming the basis for the EU’s Water Framework and was emulated by many governments around the world.
Unfortunately, in practice, the implementation of the legislation has been very slow. The recently released National Water Plan highlights that just 5% of agricultural water used is by black farmers, noting that the reallocation of water has not kept pace even with the slow pace of agricultural land reform.
A case in point is a river catchment near Barrydale in the Western Cape.
This valley still symbolises old, rural South Africa.
An affluent, well-resourced white farmer, lets call him Mr Fourie*, who employs dozens of staff on his extensive commercial farms, controls the upper catchment.
Just a few kilometres downstream, a black land restitution beneficiary, who I shall call Mr Adams, can see Mr Fourie’s large dam. Adams, the black farmer, must rely on what trickles over that dam to provide water for the river that flows next to his farm.
The river upstream of Mr Fourie’s dam is fed by perennial groundwater springs and flows all year round, even during droughts. The National Department of Water and Sanitation has already calculated and gazetted the Reserve for the river downstream of the dam.
Their experts determined that some flow must be provided in all months of the year, even in low rainfall years.
But in practice, this is not happening – the National Department of Environmental Affairs recently confirmed that the river downstream of Mr Fourie’s large dam has not flowed at all for the past three years.
Too much water is abstracted from the dam for Mr Fourie’s extensive network of orchards. The National Department of Water and Sanitation’s own studies confirmed that the areas of orchards and irrigated fields, and their estimated water use, far exceeds the approved water use for this dry Klein Karroo catchment.
While Mr Fourie believes that he inherited the majority of the water when his family bought the farm, Mr Adams is adamant that, because the water used to get to his farm, it should continue to do so.
A flow requirement determined, overuse of water confirmed, but for years, there has been no resolution.
Hard to believe, but Mr Adams has perhaps been luckier than others due to assistance from another farmer in this valley, who has been fighting for the government to restore the river flows to the section alongside Mr Adams’s farm.
However, after years of expensive legal action and investigations, “it would appear that justice is only delivered to those who can afford to fight for it”, said the farmer.
The Blue Scorpions, the provincial and national Environmental Affairs staff, the local catchment management agency and the National Department of Water and Sanitation have all weighed in on various aspects of the unauthorised dams, pipelines, abstractions, irrigation areas and alien vegetation that is drying up the river.
Yet still the river has not flowed.
Most recently, Mr Fourie has applied to pump 60 times the generally authorised volume of groundwater from a borehole sunk in the river upstream of the dam.
The National Department has yet to rule on this application.
In my experience in the water sector, delays arise because processes have been allowed to become overly complicated, the department and consulting fraternity are under-skilled and, on the ground, some landowners and officials have struggled to move away from the historic riparian water ownership system.
In this catchment, and across South Africa, greater equity in water allocations and provision of flows for the environment are both needed. Despite years of promises and studies, neither has yet happened.
The department’s new Water Plan, recently announced by Ministers Lindiwe Sisulu and Patricia de Lille, provides a very clear message on the direction that this administration is intending to take.
For Mr Adams and for the many other farmers, towns and the environment downstream of him, they must hurry.
Land reform without access to water is doomed to fail.
Equitable distribution and sustainable management of our shared water resources was promised 21 years ago.
It is time to deliver.
– Mark Rountree is a scientist with 19 years experience in the water resources sector. He is the National Policy Officer for GOOD.