Law, Environment and Development Journal (Sep 2007)
General Authorisations as a Tool to Promote Water Allocation Reform in South Africa
Abstract
South Africa faces significant inequities in access to and use of water for productive purposes. The National Water Act seeks to address these inequities and introduced a public rights system where water is owned by the people of South Africa and held in custody by the state. This public trust doctrine forms the basis for the State to give effect to its constitutional obligation for redress. Compulsory licensing is a mechanism to proactively reallocate water on a catchment basis to achieve redress, while at the same time promoting economic efficiency and ecological sustainability. During compulsory licensing, all users are required to reapply for their water use entitlement, and a process is followed to allow for a fairer allocation of water between competing users and sectors. Some concerns have been raised that equity may not be achieved through compulsory licensing as historically disadvantaged individuals may not have the capacity to partake in the process. Similarly, the administrative burden of processing large numbers of licences from small scale users may cripple licensing authorities. Moreover, the compulsory licensing process, while encouraging Historically Disadvantaged Individuals (HDIs) to apply, may have little impact on poverty if the poorest are not able to participate in the process. General authorisations are proposed as a way of addressing these concerns by setting water aside for specific categories of users. This paper introduces the concept of general authorisations in support of compulsory licensing and outlines some of the implementation challenges.
