Everyone has the right to have access to sufficient water.(Bill of Rights, Constitution of South Africa, Section 27 (1) (b) )The dictionary describes water as colourless, tasteless and odourless – its most important property being its ability to dissolve other substances. We in South Africa do not see water that way. For us water is a basic human right, water is the origin of all things – the giver of life. The poet Mazisi Kunene has said: From water is born all peoples of the earth.There is water within us, let there be water with us. Water never rests. When flowing above, it causes rain and dew. When flowing below it forms streams and rivers. If a way is made for it, it flows along that path. And we want to make that path. We want the water of this country to flow out into a network – reaching every individual – saying: here is this water, for you. Take it; cherish it as affirming your human dignity; nourish your humanity. With water we will wash away the past, we will from now on ever be bounded by the blessing of water.Water has many forms and many voices. Unhonoured, keeping its seasons and rages, its rhythms and trickles, water is there in the nursery bedroom; water is there in the apricot tree shading the backyard, water is in the smell of grapes on an autumn plate, water is there in the small white intimacy of washing underwear. Water – gathered and stored since the beginning of time in layers of granite and rock, in the embrace of dams, the ribbons of rivers – will one day, unheralded, modestly, easily, simply flow out to every South African who turns a tap. That is my dream.Antjie KrogA new South Africa and a new Water LawWater is a powerful symbol throughout the world, carrying with it ideas of baptism and new life, cleansing and healing, and the promise of growth and prosperity. In contrast, in a region of growing demands on a limited resource, the increasing scarcity of water could result in devastating conflicts and catastrophes.South Africa’s water law comes out of a history of conquest and expansion. The colonial law-makers tried to use the rules of the well-watered colonising countries of Europe in the dry and variable climate of Southern Africa. They harnessed the law, and the water, in the interests of a dominant class and group which had privileged access to land and economic power.It is for this reason that the new Government has been confronted with a situation in which not only have the majority of South Africa’s people been excluded from the land but they have been denied either direct access to water for productive use or access to the benefits from the use of the nation’s water.The victory of our democracy now demands that national water use policy and the water law be reviewed. Our Constitution demands this review, on the basis of fairness and equity, values which are enshrined as cornerstones of our new society. But there are other pressing reasons too.The development of our society, our growing population, and the legitimate demands of the disadvantaged majority for access to that most crucial natural resource – water – have placed new demands on what is, although renewable, a limited resource that can easily become polluted or over-used. There is only so much water that falls on our land every year. Unless we wish to begin to remove the salt from our vast resources of sea water (a very expensive process that requires enormous amounts of energy) we have to live within our means. The way that we use our water at the moment is far from ideal: we are not getting the social, economic or environmental benefits from our water use that we could, or should be getting, indeed, that we need to get.The ability of the human mind to find solutions to problems is unending. We have learned how to borrow water from one year and pay it back in the next using our dams as the banks of the water economy. But just as there is a limit to the amount of money that Government can borrow to finance its programmes, there is a limit to the number of dams that we can afford to build, a limit to the number of rivers that we can afford to dam, a limit to the amount of water to be dammed. And, as with even the smallest household budget, we cannot afford to borrow (either money or water) if we cannot repay what we have borrowed.It is time for us to extend our ingenuity in another direction. Water conservation programmes may be far better investments than financing new dams, new tunnels and pumping stations, new weirs and pipelines. Conservation programmes may both increase water supply (by, for instance, controlling land use practices) and manage demand (for instance, through the application of appropriate tariffs).The use to which we, as a society, put our water will come under increasing scrutiny and intensifying management as we move into the 21st century. We will have to stretch our understanding, and apply our wisdom ever more creatively if our aspirations for the growth and development of our society are not to be constrained as a result of limited water resources.This is a significant challenge for a country where rain falls unevenly in space and time; where the areas of highest rainfall are far from the industrial and urban heartland and from areas of rural poverty; where crippling droughts or devastating floods repeatedly wreak their vengeance on our land and our people; and where available water resources are inequitably distributed and sometimes inappropriately used.South Africa has shown the world that peace can be created out of conflict. This new water policy for South Africa is yet another demonstration of this unique ability. The new water policy embodies our national values of reconciliation, reconstruction and development so that water is shared on a equitable basis, so that the needs of those without access to water in their daily lives are met, so that the productive use of water in our economy is encouraged, and so that the environment which provides us with water and which sustains our life and economy is protected.I wish to thank all those who have put their time and energy into this important work.ContextSouth Africa’s water law applied the rules of the well-watered colonising countries of Europe to the arid and variable climate of South africa. Water was mostly used by a dominant group which had privileged access to land and economic power. The victory of democracy demands that national policy on water use and the water law be reviewed.The review must reflect the requirements of fairness and equity, values which are cornerstones of South Africa’s new Constitution. It must also reflect the limits to the water resources available to us as a nation.There is a limit to the development of new dams and water transfers that we can afford or sustain. Our present use of water is often wasteful and inefficient and we do not get the benefits we should from the investments in our water. Water conservation may be a better investment than new dams. We will have to adopt such new approaches to water management if our aspirations for growth and development of our society in the 21st century are not to be held back as a result of limited water resources.The law is the basis for our joint action as a society and must underpin our public efforts to manage water resources. This document serves to outline the policy which, it is proposed, will direct the management of water in South Africa in the future and will guide both the drafters in translating our intent into effective legislation and the managers in creating practical programmes of action.Process of policy developmentThis White Paper is the product of two years of hard work and wide consultation. The first outcome was the production of the Fundamental Principles and Objectives for a New Water Law in South Africa which were approved by the Cabinet in November 1996. These Principles have in turn guided an intensive programme of work involving the Minister and other political leaders, officials from the Department of Water Affairs and Forestry and other Government Departments, organised user groups and South Africans from all walks of life and from all provinces in a process of consultation, research and synthesis.At the same time, building on the foundations laid by the 1994 White Paper on Water Supply and Sanitation, and in close consultation with organised local government, a new Water Services Bill, regulating water supply and sanitation services, has been drafted. This will ensure that, as we address the large questions of water resource management, the needs of all South Africans for access to these basic services will not be forgotten.The policy development process has been assisted by the support and involvement of officials and experts from other countries and from international organisations.The White Paper is a very summarised product of this process. It does however outline the direction to be given to the development of water law and water management systems which will take us into the next century.Key proposalsSome of the key proposals which will guide water management in South Africa in the future are that:The status of the nation’s water resources as an indivisible national asset will be confirmed and formalised.National Government will act as the custodian of the nation’s water resources and its powers in this regard will be exercised as a public trust.All water in the water cycle whether on land, underground or in surface channels, falling on, flowing through or infiltrating between such systems, will be treated as part of the common resource and to the extent required to meet the broad objectives of water resource management, will be subject to common approaches.Only that water required to meet basic human needs and maintain environmental sustainability will be guaranteed as a right. This will be known as the Reserve.In shared river basins, Government will be empowered to give priority over other uses to ensure that the legitimate requirements of neighbouring countries can be met.All other water uses will be recognised only if they are beneficial in the public interest.These other water uses will be subject to a system of allocation that promotes use which is optimal for the achievement of equitable and sustainable economic and social development.The new system of allocation will take into consideration the investments made by the user in infrastructure for water use.The new system of allocation will be implemented in a phased manner, beginning in water management areas which are already under stress. This system of allocation will use water pricing, limited term allocations and other administrative mechanisms to bring supply and demand into balance in a manner which is beneficial in the public interest.The riparian system of allocation, in which the right to use water is tied to the ownership of land along rivers, will effectively be abolished. Transitional arrangements will, over time, ensure an orderly, efficient and gradual shift in water use allocations as and when necessary.Water use allocations will no longer be permanent, but will be given for a reasonable period, and provision will be made to enable the transfer or trade of these rights between users, with Ministerial consent.To promote the efficient use of water, the policy will be to charge users for the full financial costs of providing access to water, including infrastructure development and catchment management activities. This will be done on an equitable basis and according to the realistic reasonable programme which has already been begun.All water use, wherever in the water cycle it occurs, will be subject to a catchment management charge which will cover actual costs incurred.All water use, wherever in the water cycle it occurs, will be subject to a resource conservation charge where there are competing beneficial uses or where such use significantly affects other users.The use of rivers and other water resources to dispose of wastes will also be made subject to a catchment management charge which will cover actual costs, and a resource conservation charge where there are competing beneficial uses for such use and/or such use significantly affects other users.To promote equitable access to water for disadvantaged groups for productive purposes such as agriculture, some or all of these charges may be waived for a determined period where this is necessary for them to be able to begin to use the resource.To promote equitable access to water for basic human needs, provision will also be made for some or all of these charges to be waived.All major water user sectors must develop a water use, conservation and protection policy, and regulations will be introduced to ensure compliance with the policy in key areas.In the long-term, since water does not recognise political boundaries whether national or international, its management will be carried out in regional or catchment water management areas (which will coincide either with natural river catchments, groups of catchments, sub-catchments or areas with linked supply systems with common socio-economic interests) recognising that conflicting interests will intensify the need for national management and supervision and that the policy of subsidiarity does not interfere with the need for a national and international perspective on water use.Provision will be made for the phased establishment of catchment management agencies, subject to national authority, to undertake water resource management in these water management areas.Provision may be made to allow for the functions of the development and operation of the national water infrastructure which links regional catchments and systems, to be transferred to a public utility established for that purpose.Some of these proposals will pose a challenge to large water users although no particular group is particularly targeted. The White Paper makes it clear that the objective of the new policy is not just to promote equity in access to and benefit from the nation’s water resources for all South Africans, but to make sure that the needs and challenges of South Africa in the 21st century can be addressed.Farming, including dry-land agriculture and forestry plantations, is an important part of the economy and sustains millions of people in the rural areas; it is also however the sector which accounts for around half the nation’s water use. The mining industry, as it brings out the mineral riches of the earth, unfortunately also releases many harmful products that can threaten our water. Both these sectors will have to re-evaluate their use of and impact on our water resources, and will have to pay a price for water that reflects the real economic cost, including the indirect costs to society and the environment for their water use.Other sectors, particularly the rest of industry, will also come under pressure to clean up their activities. Local governments (and the domestic users they serve) will have to look at the way they use and often waste water. Even promoters of the needs of the environment will have to justify the degree of environmental protection they seek.Way forwardAs has been made clear in the Principles which guided the law review, the most important objective is to promote the well-being of all South Africans, present and future. The measures proposed are necessary if we are to survive as a nation in the 21st century.The new national water law will recognise the need for a period of adjustment and transition which in some cases will last for many years. While goals will be set, there will also be provision for interim arrangements.The way the new approach is put in place will be sensitive to the particular problems faced by each sector. Farmers will be helped to adjust; mines and manufacturing industry will be encouraged to promote their own programmes to meet the standards which will be set, monitored and enforced by Government. Conservation programmes are being started to enable local government and domestic users to meet their obligations.The objective in relation to our neighbours is the same as it is within South Africa’s borders, to ensure that we adjust to the pressures and demands of the future through co-operation, not conflict, in harmony with the needs of our common developmental goals and the protection of our environment.These activities and approaches are essential if we are to achieve the national goal of making sure that there will always be some water, for all who need it, contributing towards growing prosperity and equity in our land.This goal is captured in the slogan of the Department of Water Affairs and Forestry whose staff have committed themselves to ensuring: Some, For All, For Ever, which sums up the goals of:access to a limited resource (some)on an equitable basis (for all)in a sustainable manner, now and in the future (for ever).1. Setting the Context1.1. Scope & PurposeThe objective of this White Paper is to set out the policy of the Government for the management of both quality and quantity of our scarce water resources.This policy is one step in the process of reviewing the 1956 Water Act and the current practices and institutional arrangements for water management in the country. Both this White Paper and the review of the water law reflect the urgent need for change in this field, and the high priority given to appropriate water management by the national Government.The purpose of this White Paper is to:provide some historical background regarding access to and the management of water in South Africa;explain the current development context in which South Africa finds itself;explain the environmental and climatic conditions which affect the availability of water in South Africa;put forward certain policy positions, based on the Fundamental Principles (see Appendix 1) adopted by the Cabinet in November 1996;outline the proposed institutional framework for water management functions;outline the steps which will follow the publication of this White Paper in order to translate the policy into law and action.The most important step once the White Paper has been accepted will be to draft a National Water Bill based on the policy positions outlined in these pages. Interested parties will be involved in this process to make sure that the goals of the policy are achieved, and the legislation that is created is practical, efficient and effective.The law is the basis of our collective action as a society and must underpin our public efforts to manage water resources. The policy outlined in this document will direct the management of water in South Africa in the future; it will guide the drafters who must translate the policy into effective and practical legislation; and it will guide those South Africans who must translate our intent into workable programmes of action.This document will be available in English, Afrikaans, seSotho, Zulu and Xhosa. A summarised version will be made available in all official languages.1.2 STRUCTUREThis document is divided into two sections. The first sets the context within which the White Paper is being produced, and outlines the issues to which it is responding. It covers the social, political, economic and development context in South Africa, as well as relevant international developments around water policy and management approaches.The second section deals specifically with the new national policy for water resource management in South Africa. It sets out the broad policy vision, addressing specific aspects of water management as well as indicating the institutional arrangements that will be necessary to implement the policy. Finally, the way forward for the development of new legislation and implementation of the new policy is outlined.A defintion of terms used in this White Paper is provided at the end of the document (Appendix 2) to assist those who might not be familiar with some of the technical terms used in the water sector.1.3. THE PROCESSThis White Paper is the result of two years of hard work and wide consultation, beginning with the distribution, in May 1995 of the booklet You and Your Water Rights for public comment. A Water Law Review Panel then produced a set of principles for a new water law, taking into account the comments from the public. These principles were further refined and released on 17 April 1996 as the basis for further public consultation.Consultative meetings were held in all nine provinces, organised in such a manner that the voices of the rural poor and the disadvantaged would be heard.Other interest groups such as agriculture, industry, mines, municipal users and environmental groups were encouraged to arrange their own meetings to discuss the principles. They also took part in the consultative meetings and in bilateral meetings with the Minister and Department. Other national government departments and both provincial and local spheres of government have also been consulted.The consultations ended in a Water Law Review National Consultative Conference in East London in October 1996 which discussed practical approaches to implementation as well as the principles that will guide the drafting of the law. The final Fundamental Principles and Objectives for a New Water Law for South Africa (referred to from here on as the Principles) were approved by Cabinet in November 1996.Eleven technical task teams were then appointed to translate the Principles into practical proposals which informed the policy positions of this White Paper. In addition, guided by Principles 25-28, a Water Services policy document and draft Bill have been produced.A National Water Bill will be drafted on the basis of this White Paper, to be tabled in Parliament during the course of 1997.1.4. ACKNOWLEDGEMENTSMany individuals and organisations have made important contributions to this policy document and to the water law review process, and many key contributors have made their services available at no cost.Substantial contributions have been made by external donors, notably the Finnish Government which made a five million rand grant to the process, but also British, American and other donors. Local contribution of expertise received from the Land and Agriculture Policy Centre and local contribution received from the Water Research Commission have supplemented budgetary funds.2. THE NEW SOUTH AFRICAN CONTEXT2.1. THE CONSTITUTION AND WATERThe Constitution, which expresses the desires of the people of South Africa who created it, is now the highest law of the land, and all law, including water law, must follow the spirit and letter of the Constitution and should give force to the moral, social and political values that the Constitution promotes.The first of the Principles confirms this by stating that South Africa’s new water law shall be subject to and consistent with the Constitution in all matters and will actively promote the values enshrined in the Bill of Rights.The need for the review of South African water law and for a fundamental change in our approach to water management is underpinned by the Constitution, both in relation to the creation of a more just and equitable society and, in relation to the broad need for more appropriate and sustainable use of our scarce natural resources, driven by the duty to achieve the right of access to sufficient water.2.1.1. Preamble to the ConstitutionThe Preamble to the Constitution expresses an acknowledgement by the people of South Africa of the injustices of our past and a collective commitment to heal the divisions of the past. It commits us to establishing a society based on democratic values, social justice and fundamental human rights through, among other things, improv(ing) the quality of life of all citizens and free(ing) the potential of each person.2.1.2. The Bill of RightsThe idea of social justice is taken further in Chapter Two of the Constitution which contains the Bill of Rights, the heart and soul of the Constitution, the cornerstone of our democracy. The Bill of Rights lays out the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom, as well as non-racialism and non-sexism.The Bill of Rights is binding on our law and the courts, all government departments and organisations, the Government, and all South Africans, not only in terms of the rights, privileges and benefits that it gives, but also in terms of the duty and responsibility to implement and protect Constitutional rights and values.2.1.3. Limitations clauseThe rights set out in the Bill of Rights are not absolute. They may be limited by law if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and fairness. Their implementation must be coloured by the values expressed in the Constitution, and in accordance with the strict requirements of Section 36 of the Constitution, which provides a mechanism for the limitation of the fundamental rights and freedoms guaranteed in the Bill of Rights.2.1.4. The Right to EqualityOne of the rights which is important for the development of new water policy states that every person is not only equal before the law but also has the right to equal protection and benefit of the law. The Constitution, defines equality to include the full and equal enjoyment of all rights and freedoms, while also stating that in order to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.Apartheid was an inefficient racial spoils system under which the distribution of water-use was racially biased, and access to water and the benefits from its use a privilege of those with access to land and political and economic power. In the context of the reform of the water law, the right to equality requires equitable access by all South Africans to, and benefit from the nation’s water resources, and an end to discrimination with regard to access to water on the basis of race, class or gender.2.1.5. The Rights to Dignity and LifeWater gives and sustains life. The failure of the apartheid government to ensure the provision of sanitation and water for basic human needs such as washing, cooking and drinking, for growing crops, and for economic development impacted significantly on both the right to dignity and the right to life amongst the black majority. The Constitution provides that every person has a right to life and guarantees the inherent dignity of all persons and the right to have their dignity respected and protected and places a duty on the state to make sure that this right is respected, amongst other things, through access to water.2.1.6. Environmental RightsThe Bill of Rights also gives all South Africans the right to an environment that is not harmful to their health or well-being, as well as the right to have the environment protected for the benefit of present and future generations. It is, therefore, the duty of the Government to make sure that water pollution is prevented, that there is sufficient water to maintain the ecological integrity of our water resources, and that water conservation and sustainable, justifiable economic and social development are promoted.This section of the Constitution moves us away from the old approach that pitted environmental goals against economic and development ones, and requires, instead, that they be integrated.2.1.7. Property RightsWhile describing the rights of our people to a just and fair society, the Bill of Rights also establishes the framework within which regulation and allocation of water can take place. Although the Constitution guarantees certain protections in respect of property, there are different ways in which a person’s property rights can be interfered with by the state. The Constitution draws a distinction between deprivation and expropriation. Generally speaking expropriation means the complete removal of an established property right and will require compensation. Deprivations, however, which merely limit the extent of use of property, (for example, zoning requirements under a town planning scheme limit the uses to which we may put the piece of land on which we live) do not require compensation.The property clause also makes specific provision for corrective action. It states that no provision of the property rights clause may stop the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination.Clearly, not every common law entitlement amounts to a constitutionally protected property right. The new Act will treat existing water uses in the manner described in Section 5.1.3 which considers the specific implications of these provisions. This is consistent with the position in many other countries where it is recognised that Government may generally impose regulations that impact upon property rights without such intervention being considered to be an expropriation.2.1.8. The Right of Access to Sufficient WaterThe property rights question cannot be understood without looking at the important provision of the Constitution which guarantees every person the right to access to sufficient water and food, and to health care services. This promises every child the right to, amongst other things, basic nutrition and health care services. Access to sufficient affordable clean water for hygiene purposes should be seen as part of the primary health care service.Government is instructed to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of these rights. The reform of the water law must, therefore, put in place arrangements to ensure, amongst other things, that all South Africans gain access to sufficient water to meet basic domestic needs. This will reinforce the measures proposed in terms of the Water Services Bill to regulate the water supply and sanitation services provided by local authorities.The reallocation of existing water uses – to improve the optimum and equitable use of water – is, therefore, constitutionally valid. This is also in line with international developments which have increased the role of the state as the public trustee of natural resources (see Section 5.1.2).2.1.9. Co-operative GovernmentThe management of water is, constitutionally, a national function, and the role of public trustee of our water resources is, ultimately, a duty imposed on national Government. But since this White Paper also addresses matters such as the environment and pollution control, which are concurrent national and provincial functions, the national Government will address these matters in the spirit of co-operative governance.Chapter 3 of the Constitution describes Government in South Africa as consisting of National, Provincial and Municipal spheres which are not only distinctive but also interdependent and interrelated. It provides that all spheres of Government and all organs of State must co-operate with each other in mutual trust and good faith by co-ordinating their actions and legislation with each other. Co-operative governance and integration are not only policy matters – they are constitutionally mandated.It is also the duty of the national and provincial governments to make sure that municipalities are effectively performing their functions, including the provision of water supply and sanitation services, and to assist them to achieve this goal.2.2 WATER AND SOUTH AFRICA’S DEVELOPMENT VISION2.2.1 Water and DevelopmentOf all natural resources, water permeates perhaps most deeply into all aspects of our life. It is as essential as the air we breathe for our very survival; its presence determines the nature of the natural environment in which we live; the majority of our economic activities depend upon it. The achievement of South Africa’s development vision will thus only be possible if water resources are managed in a way which is sensitive to and supportive of the many demands which we place upon them.The use of water to provide domestic services to meet basic needs is a high political priority. Water is used both for domestic consumption and (where waterborne sewerage is installed) to transport human wastes from the home. Public sector infrastructure investment in service provision can boost the economy and generate jobs as well as meet peoples’ needs.However, water contributes in many other ways to national development. In most of the country, the availability of water determines whether agriculture is viab
