The National Water Act, lauded as the most progressive and visionary piece of legislation in the world, is ahead of its time, at least in South African time.

The preamble of the Act states the purpose of the Act, which inter alia includes, that water is a scarce and unevenly distributed resource in our country, that the discriminatory practices of the past prevented equal access to water and water resources, and, that the government has a responsibility (and authority) over the country’s resources including the equitable allocation of water, for beneficial use.

Assuming these are the elements for securing water use licences, it would seem, that this could be a poisoned chalice for those who drink from it.

In applying for water use licences, the considerations that the Department of Water and Sanitation takes into account include (but are not limited to), the need to redress the results of past racial and gender discrimination and the socio – economic impact of the water use if authorised or not.

This has the effect that some applicants might not be able to secure water rights, by virtue of the fact that, they fall short of these two factors. It is obvious that the most affected parties to these considerations would be farmers, we also know that the agricultural sector has been slower on transformation then other sectors in the country for various complex reasons.

So, is The National Water Act about water or is it, in fact, land reform via the back door?

South Africa has 35 000 commercial farmers who are responsible for the food security of over 56 million people, contributing 2% GDP to the country – it is evident that this is an important sector, that needs to be supported and enabled to flourish for the survival of all the people of this country. However, putting caveats in place, for one to obtain water usage, would create unsustainability and it would mean that farmers are put in jeopardy of not being able to perform their critical function of feeding the nation.

Perhaps a compromise in the requirements is the solution.

The applications for approval of a water use licence, allow for an undertaking by the farmers, that, in ongoing and future projects on said farm, there is a concerted effort and implementation of transformation from the farmers in their hiring practices, procurement strategies and improvement of working conditions for employees in general.

This should form part of the application itself, with metrics and projections in place to give realistic timelines to the department.

Having this in place would fulfil the department’s mandate and purpose of the Act as they would have an opportunity to keep farmers accountable for the pledge made in the application and in turn keep farms viable and ensure, food security.

If this does not happen, then the National Water Act is another “wonderful” piece of legislation for a future country, tone deaf to the realities of present day South Africa.

Katlego Ngwane

October 2018

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)