Law, Environment and Development Journal (Sep 2007)
The Reform of Water Rights in South Africa
Abstract
South Africa's water law dispensation changed dramatically with the promulgation of the National Water Act 36 of 1998. The previous distinction between public and private water was abolished and the public trust doctrine was statutorily incorporated. Due to the working of the public trust doctrine existing water use rights which were in force before 1998, were replaced by water allowances granted in the discretion of the relevant authority. Three key issues are investigated in this work. First the history and development of water rights in South Africa are discussed. Secondly the system of water allowances is analysed to determine the socio-economic effects of these measures. Thirdly the question whether the state expropriated vested rights in property through the transition brought about by the incorporation of the public trust doctrine is discussed. The new concept of property and the distinction between deprivation and expropriation as dealt with in section 25 of the Constitution are examined. It is indicated that the concept of property in South African law has been extended to include pre-existing water use rights and it is argued that it also enfolds water allocations made in terms of the Act. Due to the application of the public trust doctrine it is doubtful whether any legitimate deprivation of a water use allocation can be defined as an expropriation. This issue is considered with reference to the requirements set for deprivation and expropriation in South African law.
