Law, Environment and Development Journal (Sep 2011)
Licence to Control: Implications of Introducing Administrative Water Use Rights in South Africa
Abstract
In recent years, there has been a prevalent trend towards implementing administrative water use rights in a number of countries. South Africa was one of the pioneers in this respect, implementing a progressive new water law in 1998, which introduced the concept of administrative rights in place of the old riparian system. This paper examines the implications of introducing administrative rights in the South African context. The main argument is that the institutionalisation of tradable water use licences in the face of an inherently uncertain resource – which is likely to become even more unpredictable due to climate change – is fraught with difficulty. The paper contends that the institutionalisation of administrative water use rights caused a profound shift in relations of authority, shifting from user-user correlative relations to State-user relations. This shift left the State with a large degree of discretion in terms of deciding on how to allocate rights but also burdened it with a cumbersome and unwieldy system of administration. Though the State’s new powers allowed it to embark on an effort to redistribute water to historically disadvantaged individuals, the progress is slow and with very mixed results due in part to the nature of the licensing system. The paper draws on individual empirical research by the authors in 2006 and 2009, focussing on policy-level processes as well as case studies from the Inkomati and Limpopo Water Management Areas.
