Gwendolyn Wellmann Nelson Mandela Metropolitan University A Review of the National Water Act: Constraints to the empowerment of small-scale farmers

Research commissioned by the Surplus People Project

Purpose of the paper Apartheid policies left SA with great disparity in wealth and access to both services and natural resources. Black communities had little or no access to services (1994 – 12 to 14 million South Africans without access to potable water) Although Apartheid policies governing access to water not in itself racist, access to water was linked to ownership of land. National Water Act (36 of 1998) address these issues, however progress to access to water for irrigation extremely slow Review of the NWA to see what the constraints are

Brief history of SA water legislation Prior to 1998: two separate phases In 1652, the Dutch Company declared water a public commodity and dominus fluminis (custodian) of the state; thus entrenching Roman Dutch law “...the free burghers, alongside or through whose land the water or stream ran, had no water rights. The company gave them permission to use the water for a short period each day when it could spare it, and it was as a special favour, and not a right upon which that permission was based” (Hall, 1939:13)

In 1806, the British consolidated their occupation of the Cape. The 1813 Cradock’s proclamation provided landowners security of tenure. In 1873 Sir Henry de Villiers became Chief Justice of Cape Colony, the water allocation system changed, now became rooted in English law, and linked to land ownership – riparian owners had right to share in water flowing alongside or over their properties, and entitled to spring water on their properties 1910: Union of South Africa - aggressive and oppressive land dispossession programmes aimed to prevent Black land ownership

1912: Irrigation and Conservation of Waters Act (8 of 1912) - codified existing common law and regulated competing claims for agricultural water use. Also distinguished between public and private water: “...persons not owning riparian land... are as a general rule only entitled to use public water in exceptional circumstances” (Vos, 1978) However water in public streams was regarded as public water, but this law did not provide government control over public water resources. In 1934 amendment was passed (Act 46 of 1934): protection of water in any area left to discretion of government. Gave government greater powers of expropriation for facilitating the construction of government irrigations schemes. Water Act 54 of 1956: further entrenched distinction between private and public water

Water Act (54 of 1956) Aimed at strengthening the state’s aim for greater control over water Silent on prioritizing or allocation of water for basic human needs of those persons who do not own property Access to and use of water derived from and linked to ownership of land: Public water – riparian ownership Private water – ownership of land over which water flows or springs from Water servitudes – granted by owner of the servient tenement

National Water Act (No 36 of 1998) Replaces 1956 Water Act Replaced the riparian system with an administrative system of water use entitlements De-links water rights and land ownership Only right to water is that of the Reserve encompassing both human needs and needs of the ecology

National Water Act (No 36 of 1998) Has following core objectives: Meeting basic human needs of present and future generations Promoting equitable access to water Redressing the results of past racial and gender discrimination Promoting efficient, sustainable and beneficial use of water Facilitating social and economic development Providing for the growing demand for water use Protecting the aquatic and associated ecosystems & biodiversity Reduce and prevent pollution & degradation of water resources Managing floods and droughts

Constraints in Schedule 1 Schedule 1 of the NWA permits basic water use for domestic consumption, livestock use and gardening – but not for commercial purposes Resource-poor small-scale farmers on less than one ha who use water for market-based activities for economic survival, are not given rights to water under Schedule 1.

General authorization to use water Section 4(3) – any person may apply to obtain general authorization to use water Section 27 list the factors to be taken into account when issuing licence – first on list = existing water use Sections 4(2) and 34: any person may continue existing, lawful water use in terms of previous Act. Protected use. Over-allocation, esp. in water-stressed basins ‘compulsory licensing’ (Sections 43 to 48) problematic due to lack of resources

Redistribution towards more efficient users Aim is for equitable allocation of water for beneficial use and redistribution not only for previously disadvantaged, but towards more efficient users. Implications for small-scale farmers with existing water rights, but who do not use water efficiently (e.g. Ebenhaezer on West Coast in water-stressed basin)

Other general constraints Lack of resources at DWA Unable to implement regulations, e.g. October 2007 Regulations on financial assistance to resource poor farmers Slow pace (failure???) of land reform

Thank you.