Abstract
The onset of democracy in South Africa provided the opportunity to make sweeping changes to legislation to allow for the proactive reallocation of water to address the effects of past racial discrimination. This is done through compulsory licensing provisions in the National Water Act. However, this process must balance the need to address social inequity, inefficiency in water use, economic growth and environmental sustainability with the rights of existing water users and the contribution they make to the economy and job creation.
Water reallocation reform can realise race and gender targets, and widespread reallocations to large numbers of the rural poor may make radical inroads into reducing rural poverty. Equally, redress is important for social and political stability. Key lessons have emerged from South Africa’s approaches to balancing these considerations which are addressed in this chapter.
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Notes
- 1.
In South Africa “water rights” are referred to as “water use entitlements,” to distinguish the basic right to water contained in the Reserve (see Chapter 5) from the right to use water conferred by the NWA.
- 2.
The Department of water affairs has recently (2010) promulgated compulsory licensing in three areas.
- 3.
The term water allocation reform is used in this chapter to distinguish it with water reform, which could include improved access to potable water and sanitation (see Chapter 6). Water allocation reform refers to transforming legal access to water for productive or commercial purposes.
- 4.
These provisions of the NWA have attracted considerable criticism, and have yet to be tested in the courts. The approach currently advocated in the DWAF is however that the provisions of the NWA must be implemented as they stand.
- 5.
The Reserve is the quantity and quality of water required for basic human needs, as well as for ecological functioning (see Chapter 5).
- 6.
All South Africans have access to Schedule 1 use. This allows for the small-scale use of water, not for commercial purposes, to improve livelihoods (this may include food security as well as the trading of produce for small gains to support basic needs). The focus of transforming legal access to water via compulsory licensing is for uses over and above Schedule 1 use.
- 7.
Many argue that the old Water Act of 1956 was not discriminatory per se, however, as access to water was tied to land, this Act was in effect discriminatory. Moreover many allocation decisions made under the old Water Act did make provision for environmental flows.
- 8.
Section 36 1b of the NWA allows the Minister to declare certain activities as Stream Flow Reduction Activities (SFRAs). These are activities that reduce runoff, but do not entail abstraction of surface or ground- water. To date only commercial afforestation has been declared as an SFRA [S36 1 a].
- 9.
Water users taking up a general authorisation may still be required to register their water use
- 10.
In spite of this, of the some 1,000 licences issued between 1998 and 2007, very few were issued to black users or communities. While some applications from black owned enterprises are still awaiting processing, the majority of requests for licences are still received from white and male applicants (most often for water trading).
- 11.
The discussion here focuses on the small-scale commercial use of water, beyond that which is secured as Schedule 1 use, and therefore that water use which will be subject to compulsory licensing.
- 12.
Kabat and van Schaik (2003) show that climate change may result in between 5% and 50% decreases in water availability for much of South Africa.
- 13.
The Blyde 800 scheme is presently “on ice,” pending the outcome of land claims by people disposed of land under the apartheid system.
- 14.
Statistics in South Africa show that the gap between rich and poor is widening in spite of the successful promotion of Black Economic Empowerment. This lead to the promotion of the concept of Broad Based Black Economic Empowerment – which aims at a wider set of beneficiaries.
- 15.
Interestingly, Land Reform also shifts the water that was associated with that land into black hands. This may in fact prove a more effective means of securing water allocation reform.
- 16.
There is increasing evidence that crime is affecting the sustainability of many land and water reform projects.
- 17.
A Water Allocation Plan forms part of the Catchment Management Strategy, which is developed by a Catchment Management Agency, [S9e] of the NWA. If this plan has already been developed, it can form the basis for reconciliation in compulsory licensing. If not, a draft Allocation Plan guides the process.
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Quibell, G., Stein, R., Seetal, A., Ncapayi, N. (2010). Transforming Legal Access to Water to Redress Social Inequity and Economic Inefficiency. In: Schreiner, B., Hassan, R. (eds) Transforming Water Management in South Africa. Global Issues in Water Policy, vol 2. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9367-7_5
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