22 November 2023
Amendments to the National Water Act (Act 36 of 1998) prohibit the trading of water rights and prioritise empowerment.
Significant changes to the National Water Act grant the minister broad new powers that are not well-defined. One of them allows the minister to allocate water afresh between sectors, catchment areas and provinces. However, the draft legislation does not provide a definition of reallocation or a mechanism for how it can occur.
The new draft legislation prohibits trade in water rights. This follows a Constitutional Court ruling in March rejecting a decision that water users may transfer their water rights to another user for compensation.
Empowerment a must
Water law expert and attorney Adriaan Groenewald says principles outlined by the appeal court in the Goede Wellington case, stating that black economic empowerment is one of several considerations when allocating a water right, are now set aside. A new measure makes empowerment a mandatory consideration when issuing a water licence.
The draft law also eliminates the statutory basis on which water user associations and irrigation boards operate. The groups must now use the model constitution in the National Water Act as the basis for drafting their constitution, which was not a requirement in the past.
Another potentially problematic addition, according to Groenewald, is a provision that the granting of a water licence can be postponed if an investigation or court case is under way. It is unclear whether there must be a connection between the offence and the licence application.
Protecting water sources
The draft law requires the minister to define and declare important water sources in the Government Gazette, and it imposes limits on mining, forestry and agriculture within those areas. Such activities may not occur within 32 metres of such a source.
The draft says the minister must review existing water uses in such areas, but there is no indication of what happens where mines, farms or forestry plantations operate there with existing licences.
The draft law lists hydraulic fracturing, or fracking, as a controlled activity, a positive development for water users in areas where there are plans for shale gas exploration.
Fines and imprisonment
The draft proposes severe penalties for certain offences. A fine of up to R10 million and/or 10 years’ imprisonment can be imposed on anyone who does the following:
- Uses water contrary to the law
- Fails to comply with the conditions of their licence
- Disobeys a directive from the Department of Water and Sanitation
- Illegally interferes with a water facility or water meter
- Refuses to perform an obligation under the National Water Act or prevents someone else from doing so
- Does anything that pollutes or damages a water resource
For the following offences, a fine of up to R5 million and/or 5 years’ imprisonment can be imposed for a first conviction, and R10 million and/or 10 years’ imprisonment for subsequent convictions:
- Fails to hand over necessary documents, records or data, or hands over false data
- Fails to register an existing legal water use when requested by an authority
- Fails to register a dam with a safety risk
- Fails to comply with a temporary limit on water use
The comment period closes on January 17 and comments can be sent to khudugam@dws.gov.za and kgosanak@dws.co.za. The full draft legislation can be downloaded here.
