Fluid Rights: Water Allocation Reform in South Africa

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Her encompass. Water for productive uses also has the potential capabilities will be increased in terms of having better health, to address questions of inequality. In rural contexts, thus, access to water for pro- out by Anand , Robeyns various and Gasper He also argues that to livelihood and welfare. As the Mazibuko case highlights, ure of water. Access to ties and also in the formulation and vindication of human water for productive purposes is intimately linked up to land rights. But even so-called mature democracies are characterized access and entitlements to irrigation can mean nothing if land by political struggles and decisions are determined by wider is- ownership is absent or insecure.

In South Africa for example, sues concerning political economy, leaving much to be desired water access is regulated by statutory law and a system of in terms of participatory decision-making processes. Thus, even licensing, land access in some areas is still governed by tradi- providing something as simple as water is going to be highly tional practices, where local chiefs allocate Permissions to contested and skewed in interests of the powerful.

Mostly, poor Occupy PTOs , often favoring close kin and allies. We now turn to water as a pro- tices, which in turn are shaped by their roles and functioning ductive resource where some further challenges emerge, largely within their community. EA has been criticized for being neutral with respect to 8. As the water literature outlined merely having access to water is not enough. Instead, a person above highlights, entitlements to water are imbued in meaning, needs a certain kind of access in order to derive certain free- fuzzy property rights, social and power relations and are doms or functionings i.

What happens when such messy water rights on a host of factors and capabilities. Policy makers therefore need to focus on the multi- political interests. Two, negotiations around the re-ordering dimensional aspects of water and their links with human of water rights can produce entitlements failures for some.

There needs to be ures for those who lack access to irrigation facilities. The article also explored the idea of basic capabilities re- Some of these limitations of the EA in the environmental quired for human functioning in the water realm through context have already been highlighted by Leach et al.

It demonstrated how Gore and Devereux Countries such as South Africa, Ecuador, Bolivia, also argues that the focus the individual as a unit of Gambia, Tanzania, and Uruguay now recognize the human analysis can be problematic where natural resource manage- right to water. But there remains a considerable gap between ment is linked to units beyond the individual such as the human rights talk and human rights practice and there is often household, extended family, and lineage groups.

In terms of entitle- to break down false distinctions between water for domestic ments to water, this latter criticism implies that attention and productive purposes. As argued earlier, some liberties may translate into the world. For example, the freedoms of poor people enjoy the same standard in terms of capability, setting a min- concerning basic water may be restricted due to large land imum standard such as 25 L in South Africa can be highly owners insisting on large-scale irrigation facilities that monop- problematic and not tackle inequality head on.

In some cases, olize limited water resources in arid areas. Thus, a broad def- inequalities can also be exacerbated. But this reluctance is short-sighted. This article thus argued achieving the MDGs on water and sanitation through low- for the need to advance a human development approach to cost technology and locally appropriate solutions see Mehta water.

The article also demonstrated how Also water entitlements for some may Right to Water and Sanitation unlike the Special Rapporteur, mean entitlement failures for other. These issues need to be say, on housing appears to lack such a clear mandate. Thus, a human develop- for productive purposes. NOTES 1. Thus the focus is not just on the commodities, to achieve. Here too, how to free people with regard to what they can achieve with regards to the links with water and sanitation are obvious.

Only through access to water. UNEP has focused on the multi-dimensional nature of ecosystems and entitlements and capabilities. It has also focused on empowering individuals to become agents of change 3. It is beyond the scope of this article to deal with the roles of see UNEP, Hence debates of institutionalism are not handled. Scarcity, entitlements and the economics of water in Falkenmark, M. Population and water resources: developing countries. Cheltenham: Edward Elgar. Population Bulletin 47 3 , 1— Washington DC: Anand, S. Human development and economic Population Reference Bureau.

World Development, 28 12 , — Fine, B. Economics and scarcity: Amartya Sen as point of Bakker, K. Mehta Ed. London: Earthscan. Barlow, M. Blue gold: The battle against corporate Flynn, S. Ruiters Boelens, R. Out of the Eds. Bruns, B. Negotiating water Gasper, D. What is the capability approach?

Its core, rationale, rights. Institute of Social Studies Working Papers, Cameron, J. Journal of International Goldewijk, B. Where needs meet rights: Development, 12 7 , — Economic, social and cultural rights in new perspectives. Moral ecological rationality: Institutions and the publications. Development and Change, Goldman, M.

Derman, B. Observations on the intersections of Geoforum, 38, — In Paper Gore, C. Johannesburg, South Africa. Hall, D. Public resistance to Devereux, S. Development in Practice, 15 3—4 , critiques. Oxford Development Studies, 29 3 , — Advocacy of water scarcity: Leakages in the argument. Rosegrant, M. World water and food In L. Washington: International Food allocation pp. Progress on sanitation and drinking Institute.

Roth, D. Liquid relations: Kijne, J. Water productivity in Contested water rights and legal complexity. New Brunswick, New agriculture: Limits and opportunities for improvement. Oxen: CAB International. Seckler, D. Lankford, B. A share response to scarcity: Moving beyond the World water demand and supply, to Scenarios and volumetric. Colombo: International Water Management Institute. Sen, A. Elements of a theory of human rights. Philosophy and Leach, M. Dynamics and institutions in community-based natural resource Sen, A.

Development as freedom. Delhi: Oxford University Press. World Development, 27 2 , — Capability and wellbeing. Sen Loftus, A. Oxford: Clarendon Press. Ruiters Eds. Inequality re-examined. On ethics and economics. Oxford: Basil Blackwell. Commodities and capabilities. The age of commodity: Water Press. Resources, values and development. Cambridge, MA: Mehta, L. The politics and poetics of water: Naturalising scarcity in Harvard University Press. Western India. New Delhi: Orient Longman.

Development: Which way now?. The Economic Journal, Mehta, L. The 93 , — Wheeler Eds. Poverty and famines: An essay on entitlement and Rights, resources and accountability pp. London: Zed. Oxford: Clarendon. Mehta, L. Financing water for all: Behind border Shiklomanov, I. World water resources. A new appraisal and convergence in water management.

The Human Sciences Research Council (HSRC)

IDS Working Paper Water and well-being: Explaining the gap Srinivasan, S. No democracy without justice. Political freedom in in understandings of water. Baviskar Ed. Journal of Human Development, cultural politics of a natural resource pp. Delhi: Permanent 8 3 , — Steward, F. Book review: Women and human development: The Mehta, L. Global Environmen- capabilities approach by Martha Nussbaum. Journal of International tal Justice and the Right to Water.

Geoforum in press. Development, 13, — Meinzen-Dick, R. Negotiating water rights. Sultana, F. The right to water: Politics, London: Intermediate Technology. London: Routledge. Mosse, D. The rule of water: Statecraft, ecology, and collective Toye, J. What did economists do with scarcity? In Presentation at action in South India. New Delhi: Oxford University Press. Brighton: IDS.

Movik, S. Basingstoke: Nussbaum, M. Capabilities as fundamental entitlements: Sen Palgrave. Feminist Economics, 9 2—3 , 33— UNEP Exploring the links. Human well-being, poverty and Nussbaum, M. Nature, function, and capability: Aristotle on ecosystem services. Nairobi: UNEP. The United Nations world water development Economics Research. Stockholm Water van Koppen, B. Stockholm: Springer. Citizenship, rights, welfare. Franklin Ed. Cambridge: Polity Press. Vizard, P. A theory of justice. Cambridge: Harvard University human rights.

CASEPaper, An organisation that played such a pivotal role in the anti-apartheid struggle would be expected not to have succumbed so easily to the flawed logic of the Washington consensus It is ironic that the political capital built up by the ANC during the liberation struggle is now being spent to enforce neoliberal structural reforms see also Bond ; ; Carmody Land reform was a constitutional mandate, which rested on three pillars: restitution,12 redistribution13 and tenure reform. The ambitious goal of redistributing 30 per cent of land within the first years of democratic governance quickly resulted in disappointment, and a marked shift in policy in — signalling the transition from the Mandela years to the Mbeki years — saw the objective being reformulated as 30 per cent redistributed by The land reform also brought to the fore issues of traditional authority.

It underscored the rural-urban divide, but also went to the core of thorny questions about democracy versus traditional structures of governance. The next section deals with this re-emergence. The resurgence of traditional authority In the new South Africa, chiefs will melt away like ice in the sun. Traditional leaders were, therefore, able to assert considerable influence on the new Constitution, through a clause that allowed them to serve ex officio in local government, as well as to wield power via the establishment of Provincial Houses of Traditional Leaders and a National Council of Traditional Leaders Cliffe ; Oomen These powers were further strengthened by the passing of two important Acts, the Traditional Leadership and Governance Framework Act No.

They sparked rural rebellions and mass arrests throughout South Africa. CLaRA basically provided for the transfer of title from the State to communities, as part of the tenure upgrading scheme. This disregarded the family-based nature of land rights in rural areas. A brief review of the political economy context Black economic empowerment and corporate interests In the RDP, the notion of black economic empowerment BEE was initially conceived of as a means to facilitate the redistribution of productive resources to those groups that had been oppressed and disadvantaged under the apartheid regime.

However, the notion of BEE evolved over time into a process of affirmative action that provided black individuals, rather than groups, enhanced opportunities such as through the preferential granting of shares. It became more concerned with how black people could access the returns of higher economic growth rates than with real redistribution of productive assets Ponte, Roberts et al. Hence, the BBBEE approach contains contradictory objectives, and its implementation has not been subjected to academic analysis to any considerable extent.

Corporations often interpret BBBEE charters in purely managerial and technical terms, and are therefore vulnerable to charges that they implement BBBEE merely to provide a route to acquiring legitimacy Hamann, Khagram et al. In a sense, then, the process of BBBEE has moved from a political terrain, where redistribution is at least theoretically possible, to a managerial terrain, where discussions tend to be technical and codified Hamann, Khagram et al. As noted earlier, mining was a pillar of the South African accumulation strategy, and it accounted for the greatest share of export earnings Marais Powerful multinational corporations, such as De Beers and Anglo American, dominate the mining industry, and given the emphasis on globalisation and integration with international markets that became evident in ANC economic policy shortly after transition, these companies at the time enjoyed a great deal of leverage in terms of influencing economic policies Marais However, the newspaper The Sowetan reported that the mining houses still call the shots…government has been very slow in pushing the transformation of the industry thanks to the need to bend over backwards and accommodate the concerns of the industry.

In response, many South African multinationals De Beers and Anglo American included relocated their headquarters overseas, thereby removing their major assets from the reach of the South African state. In this way, there is a diffusion of responsibility and the process of policy-making is depoliticised to a certain extent. Ponte, Roberts et al. In the words of Hall: The alliance that has emerged through this process involves, in the first place, white commercial farmers and agricultural capital, which has an interest to maintain property prices and confidence in the land market, and to acquire black neighbours engaged in the same forms of production — including for the purposes of protecting access to international markets.

Secondly, it involves government, whose interests lie in revenue and stability, and therefore the growth of the commercial sector alongside its deracialisation, and the growth of a black middle class, not least as a political buffer. In agricultural terms, subsistence agricultural production is pitted against the modern agricultural sector, where modernising is equal to the consolidation and commercialisation of farming activities.

However, as Du Toit and Neves are at pains to show, such a disconnected view is uncalled for. Moreover, instead of construing symbolic myths, policy-makers would be better advised to explore what is really there, on the ground, instead of basing their strategies on simplistic assumptions. The idea of poor people being trapped in structurally disconnected productive spheres is associated with another discourse, which focuses on poverty arising out of a lack of an adequate level of basic service delivery. Such a conception situates poor South Africans first and foremost as passive citizen-consumers.

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The next section considers how water rights reform fits into these debates. Getting the Act together: Processes and drivers The geophysical backdrop Free download from www. South Africa is routinely characterised as a semi-arid country. According to the NWRS DWAF , the northern regions of the country are almost fully developed, whereas the south-eastern parts are quite well watered. Large porous aquifers occur in only a few places, and groundwater is therefore of apparently limited importance, though it is extensively used in rural and arid areas.

South Africa has four major rivers which it shares with neighbouring countries namely the Orange, the Limpopo, the Inkomati and the Pongola rivers. Irrigation use represents more than 60 per cent of total water requirements, urban requirements total about 23 per cent, and the other major sectors — bulk industrial, mining, rural and afforestation — make up the remaining 15 per cent. As stated in the section on the legacy of inequality, these resources are very unevenly distributed.

Studies from the Olifants Water Management Area demonstrate that more than 95 per cent of water resources in that basin are used by the white minority, which provides an indication of the extent of inequality. Having briefly sketched the backdrop, it is now time to discuss the main drivers of reform.

The initiation of reform Law cannot be understood outside social and political relationships. Whose ideas get instituted in law, and whose versions and visions get perpetuated, accepted and institutionalised, depends on power relations and the wider political context. All-white suburbs accounted for more than 50 per cent of residential water use, and only 27—28 per cent of black households had running water, which was in striking comparison to 96 per cent of white households Francis The Reserve referred to the notion that a minimum quantity of water should be retained in the system to meet basic human and ecological needs.

It was a ground-breaking concept which earned much publicity and which stood in stark contrast to the situation prior to when the DWAF had no jurisdiction over the homelands. His status as an internationally-renowned human rights lawyer made a profound mark on the formulation of the Act. Several observers have commented that the emphasis on closing the backlog of services owed much to Asmal, but it was the next minister in line, Ronnie Kasrils, who was the one to take issue with the question of cost, and who introduced the Free Basic Services policy.

Abrams, a water engineer by training, was also author of the Water and Sanitation White Paper. The Water Law Principles drew up a framework for managing water resources, crafted in accordance with the concerns of the new democratic government, and focused on equitable and sustainable social and economic development. According to De Coning, the process was a legal rather than a policy process, and the issue of problem structuring was not given enough attention: It was defined that water should cease to be a private good, and be developed as a public good, and the challenge was to find ways of managing it as a public good.

So this took much attention, rather than focusing on what were actually the problems in water. Telephone interview 13 June A workshop was organised in Pretoria in to present case studies and lessons from countries elsewhere, such as Mexico, France, Australia, Britain, Malaysia, India and even neighbouring Zimbabwe. Australia, in particular, constituted one of the most important sources of influence during the drafting process, as it was argued that it was very similar to South Africa in geophysical terms Hadley Kavin, member of the drafting team, interview 10 August This is clearly reflected in the fact that of the 19 proposed CMAs which it was initially envisaged, rather optimistically, would take a couple of years to establish , only one — the Inkomati CMA — was fully up and running at the time of research In terms of agenda setting, there was a sense that Asmal concentrated so much on the question of extending service that he did not really grasp the issues inherent in resource management until much later, as noted by Turton and Meissner above.

Unfortunately, the Minister had no clear principle at hand at that time that could serve as a substitute. It was recognised that parts of the prior appropriation doctrine could help, but no expert consulted by the Minister had apparently proffered a sound overall principle.

He, therefore, adopted and extended the existing permit system set out in Act 54 of and made it applicable not only to some users, but to all water users. Burger 9, emphasis added There was no clear consensus on what path to follow in terms of adopting a new legislative framework, and the prominent water law expert Robyn Stein was quoted as having argued for the retention of the current legislation and retaining the doctrine of riparian rights in its basic form, but with the addition of necessary adjustments.

This led to a gap in the attitudes of DWAF staff as well. The emphasis on services gave results. South Africa has an impressive record in terms of dealing with the backlog of water services that remained after the transition. In , an estimated 14 million people lacked access to clean water, and the Department set about correcting this at a rate of about a million additional people connected to supply services a year, which is a truly impressive achievement and widely commended see Eales It also highlights how IWRM principles were subsumed by the more politically appealing focus on services see Jonker for details , and the problems separation created in determining what would constitute legal domestic use Kahinda, Taigbenu et al.

Environmental concerns In contrast to other countries, in South Africa it was the overarching concern with social issues that acted as a trigger for reform, argue Turton and Meissner But there are other versions of the story, too, such as the one held by a legal practitioner in the Inkomati who specialised in water law and who had been involved in the drafting process. She stated that the drafting of the water law grew out of a concern about the lack of rights on behalf of the environment, and described the process as follows: It all started out with a research project in the Kruger National Park in [initiated by the Water Research Commission], to find out about the health of the ecosystem, and chart environmental indicators.

We then wanted to find out what the rights of the ecosystem were, what kind of claims we could make in terms of water quantity and quality of rivers flowing into the park… did we have any rights on behalf of the environment at all? She used to work as a prosecutor, but now wanted to get into environmental law because of this new obsession. A professor at the Lowveld College of Agriculture convinced her that it would make sense to specialise in water law, which prompted her to ask why the current water law was not taking the environment into account.

In her view, the Water Act was very much geared towards irrigation; it was basically taking care of irrigation…it only provided rights for irrigation, and disputes were only for irrigation. So you needed to have a law that took this into account. That was how the water law reform was initiated. It started with the question of how one should provide water for the environment…But after the transition in , with the new government in place, the question became But what about people? Legal practitioner, Komatipoort interview, 7 June , my emphasis Later, the feeling that the process of drafting the law had been hijacked by the environmentalists was strengthened during an interview 10 August with Hadley Kavin, a lawyer and member of the drafting team.

The task teams involved in determining policy implementation options were biased towards environmental interests, in that the environmental task teams tended to consist of more members and had more capacity than the others De Coning However, the ambiguity did not only concern commercial interests, but applied just as much to smallholders.

Although the Act itself was promulgated in , the process of fleshing out the principles of allocation did not start until five years later in , with the appointment of the Expert Panel, and it took almost three more years to develop a complete policy on allocation. But before going on to describe the process of fleshing out the allocation reform in principle and practice, the reader needs to become more familiar with the main contents and contested issues of the NWA of In the following section, I describe and analyse some of the key features and debates surrounding the NWA.

This will provide a background to understanding how key ideas were conceptualised, and how tensions in understanding would carry over into the water allocation reform process, giving rise to a struggle for different interpretations. At the national level, the NWRS is the overarching instrument for managing national water resources. Essentially, the NWA can be argued to represent an expansion of the notion of GWCAs, but rather than merely covering specified regions, it was now to cover the whole country.

Originally, the first handful of CMAs should have been up and running within the first couple of years after reform. However, at the time of research, only the Inkomati CMA had been completed, and even that was far from being fully operational. I turn now to discuss the key notions of water-use rights and the debates emerging around these concepts.

The Reserve was one of the most innovative ideas that emerged during the drafting of the NWA. Essentially, the Reserve consists of two components. The first component, the human-needs Reserve, is based on the idea that a certain quantity of water should remain in the system to provide for the basic human needs of all South African citizens.

The right to a minimum amount of water for sustenance is provided for in the Constitution. The Reserve, however, only provides a right to a basic domestic minimum see, for example, Pollard, Moriarty et al. The second component, the ecological Reserve, is meant to ensure a minimum quantity of water to maintain environmental sustainability. In the NWA, the whole of chapter 3 is devoted to protection of water resources and deals with the development of a classification system for water resources and resource quality objectives, determination of the Reserve and pollution prevention.

Up until the promulgation of the Act, there were standards that provided a certain threshold for allowable discharges into specific rivers. With regard to licences, the proposal was that conditions pertaining to the class would be subject to each individual licence. The intention was then to apply regulations, to be able, for instance, to curb bad polluters by issuing a five-year licence permitting them to discharge only so much during that time, but after that point the licence would have to be brought into line with current regulations.

He was not the only one echoing concerns about the feasibility of the ecological criteria. Among drafters and some academics, there was thus a sense that the resource classification system was hampering progress by the insistence on detailed, technical specification and classification, because licences would only be issued once the Reserve had been determined in a particular area. These are Schedule I, general authorisations, existing lawful use, and licences. This categorisation implies a clear distinction between domestic and productive uses and implements the strict separation outlined by Mike Muller, then the Director-General of DWAF.

We wanted to incorporate strong water control but the technical people could not work it out…If you look at an earlier draft [of the Bill], they had figures for domestic use written into the Bill. Under Schedule I, they could use a certain amount, a certain volume…The technical people could not support it at the end of the day, so then we left it out altogether. We actually use it as a basis, but at that time the technical people could not support it.

There was thus a pervasive concern with control, not only in terms of classifying ecological categories, but also with respect to the abstraction of relatively small quantities of water. Although it is described as an entitlement in the Act, the concept of Schedule I does not confer any rights. It allows, but does not facilitate or guarantee. The Schedule I category thus comprises what Hodgson terms a de minimis right, that is, you are allowed to use, but your use is not protected. They only have a right to what is there; if there is nothing, then they cannot claim water security.

Furthermore, Kahinda et al. The legislation establishes a procedure to enable a responsible authority, after public consultation, to permit the use of water by publishing general authorisations in the Government Gazette. Such an authorisation may be restricted to a particular water resource, a particular category of persons, a defined geographical area or a period of time, and requires conformity with other relevant laws.

General authorisations differ in one major respect from licences in that they are not transferable. However, as the reform process unfolded, general authorisations were redeployed more proactively as a means of ring-fencing water for the poor. The term refers to water use that took place during the two years immediately before the Act came into force, and which was authorised under any law in existence prior to the promulgation of the Act. In the NWA, existing lawful use is defined as part of provisions to deal with the transition mechanism from the riparian principle to an administered authorisation system.

DWAF officials, however, explained the retention of existing lawful uses primarily in economic terms. Although talking warmly of wanting to achieve social justice and lamenting the slow progress of the reform, his perception of the problem was framed mainly in macroeconomic terms. What would that do to the economy? This was a clever rhetorical device, which underscored the perception of risk. The Chief Co-ordinating Officer COO of the DWAF, a prominent black lawyer who used to head the Legal Services section, maintained that the primary reason for retaining existing lawful uses was that they the department would be exposed to allegations of expropriation if they did not do so.

Thus, rather than citing practical or capacity problems, the explanations given for introducing the concept of existing lawful uses were rooted in discourses on upholding the economy and avoiding charges of expropriation. In doing so, officials in DWAF followed the most basic strategy for garnering political support.

Department of Water and Sanitation on SA's draught crisis

Existing lawful uses, instead of being retained due to the lack of capacity by the Department to deal with them, were portrayed as a necessity to keep the country afloat. A slightly different take on the retention of existing lawful uses was provided by a senior white member of the water law drafting team, who was a retired lawyer at the time of research. Rather than arguing the case for the carry-over from a utilitarian point of view, he expanded on how the apartheid state had, in fact, been beneficial in some respects, as it had provided infrastructure, thus facilitating development that would not otherwise have taken place.

Licences and trading Free download from www. If not covered in any of the other categories, a potential user must apply for a licence. Unlike use rights under the previous legislation that could be exercised in perpetuity, licences are of a temporal nature: the maximum length that a licence can be issued for is 40 years, and it is subject to review every five years. As noted, licences were regarded by some as conducive to institutionalising water markets. Originally, provisions for transferability, or trade, of water-use rights were only introduced in the third draft of the Bill and, according to one member of the drafting team, the government was dragging its feet over the issue.

However, at the time of research, some members of staff within the department were beginning to embrace the idea of markets as vehicles for redistribution. The gist of his argument was that one could charge all water users in a region or basin. However, others within the DWAF saw this as far too expensive an option. A key difference between the idea of permits in the Water Act and the licences of the Act is that permits were largely attenuated riparian rights, where the rights accrued from being in possession of riparian land.

Licences issued under the Act are to a far greater extent subject to the discretionary power of the government, and are of a temporary nature, that is, their renewal is at the discretion of the authorities. Whereas trade of permits or quotas was prohibited under the Act, such trades, or transfers, were now lawful and could take two forms. Temporary transfers of rights could take place without having to apply to the DWAF, as long as these transfers occurred within the same irrigation district and were approved by the Irrigation Board. Permanent transfers, where an existing user wished to convert the water use from a given resource say from agriculture to industry , required an application for a permanent transfer, in which case the applicant would need to surrender the existing right and apply for a licence.

A trade could be effected if another person applied for a licence to take up the surrendered right see Appendix C , which would need to be authorised by the DWAF. In stressed catchments, where no new licences were issued and where the only uses recognised were existing lawful use and Schedule I, this was the only way anybody could get a licence for water use.

In the Inkomati region, for instance, which was designated a stressed catchment, only one to two per cent of users had a licence Deputy Director: DWAF Regional Office, interview, 8 September At that time, the DWAF received about applications for licences annually, of which some were issued. Most of these were applications for trading23 or converting water use. According to the Director: Water Utilisation, each licence application was judged according to the criteria set out in article 27 of the NWA, and took on average 12 months to handle as a major constraining issue was the lack of information about Reserve requirements interview, 15 August The length of application processing was also a recurring issue in the public hearings connected to the review of the NWA in October Parliamentary Monitoring Group, 8 October Compulsory licensing In the NWA, licences were conceived in terms of facilitating reallocation of water resources through the process of compulsory licensing sections Basically, compulsory licensing is a mechanism whereby all the water uses in a specific area are cancelled and a call for licences is issued.

This is primarily used in areas in which there is considered to be water stress, which was judged to be the case for 11 out of the 19 WMAs Director: Water Utilisation, interview, 15 August The schedule must outline in detail how water will be allocated among the applicants, with special consideration given to certain categories of these. Affected parties are provided with the opportunity of lodging an appeal. The responsible authority is under no obligation to allocate all available water, and may keep some water for future needs. Alternatively, it may allocate any surplus water remaining after the requirements of the Reserve, international obligations and corrective action have been addressed on the basis of public auction or tender.

This clause states that compensation may not be payable if water is taken away to provide for the Reserve, rectify an over-allocation, or rectify unfair or disproportionate water use. Van Der Schyff argues that the conversion of existing lawful uses into licences does not represent an expropriation of property, but rather a deprivation in the public interest.

Deprivation implies that the right to property remains in the hands of the original holder, but that certain conditions or restrictions are imposed on the exercise of the right by the State.


It is important that deprivation should not be arbitrary. Although the replacement of uses recognised under previous legislation with the new entitlements in the NWA constitutes a deprivation rather than an expropriation, Thompson regards the process of compulsory licensing as constituting an expropriation, as it involves — in his view — the taking away of water from some users to give to others. Thus, the Act laid the foundations for allocation reform, in terms of defining categories — Schedule I, general authorisations, existing lawful use and licences — and allocation procedures.

This seemingly straightforward exercise, however, was fraught with ambiguities and tensions, some of which have been hinted at above. These tensions provided the substance — the discursive spaces — for the emergence of particular narratives with respect to how rights should be allocated, and what principles and procedures should guide decisions.

It was the fleshing out of these principles and procedures that constituted what became known as the Water Allocation Reform. Notes 1 No. This term is used interchangeably with Afrikaner in this book. So the terms homelands and Bantustans are commonly interchangeably used, with political connotations, but we must be careful that we do not use the term homelands before , or the term reserves after They set annual edicts that publicly set forth how the law would be enforced, both substantively and practically.

The term can refer to market-friendly policies that were generally advised and implemented both for advanced and emerging economies. It is sometimes used in a narrower sense to refer to economic reforms that were prescribed just for developing countries, which included advice to reduce government deficits, to deregulate international trade and cross-border investment, and to pursue export-led growth from Wikipedia. However, according to Hall , only a handful of the more than 36 claims had been settled by late , due to the complexity and costliness of settling claims in rural areas involving large numbers of people on large tracts of land.

The ANC committed itself, as part of the RDP approach to land reform, to redistribute 30 per cent of agricultural land to the poor and landless over a period of five years Hall To provide a sense of scale, the commercial farming areas of South Africa amount to about 86 million hectares, and the land reform target was to transfer 26 million hectares in the first five years Hall In the first five years of ANC government — what became known as the Mandela era — — only a small fraction of the target of 30 per cent was met. Subsequently, during the Mbeki era, there was a shift in focus from the rural poor to aspiring black commercial farmers.

The Constitutional Court did eventually declare the Act unconstitutional on 11 May Forestry should arguably be placed under the Department of Agriculture DoA , as it is in most cases an Free download from www. In May , however, following the inauguration of President Zuma, the Department was renamed the Department of Water, and forestry issues were relocated to the Department of Agriculture, Forestry and Fisheries. Thus, in a sense, the traders do not know the type of deal they are agreeing to before it has been approved by the DWAF.

Section 7 : The amount of any compensation payable must be determined a in accordance with section 25 3 of the Constitution; and b by disregarding any reduction in the existing lawful water use made in order to i provide for the Reserve; ii rectify an overallocation of water use from the resource in question; or iii rectify an unfair or disproportionate water use. It describes how the whole reform process came to centre on the idea of dealing with scarcity, and how the premise of managing a scarce resource holistically, created the need to register all water users.

One of the main pillars of redistribution was the idea of compulsory licensing, whereby all existing and potential users would have to apply for a water use licence, and in the process priority would be given to those users who were historically disadvantaged. This chapter describes the setting up of the Expert Panel in , and the early drafts of the WAR programme through to the fi nal WAR position paper published in November The emerging perspectives on allocation issues and how these changed over time are mapped, showing how the use of certain terms — such as existing lawful uses — contributed to framing allocation issues in particular ways.

The failure to link up with land reform processes is highlighted, and the chapter ends by contending that the insistence on maintaining existing lawful users effectively narrowed down the room for manoeuvre in reforming water rights distribution. The Water Law Principles see Appendix B were too vague to offer the necessary practical guidance in terms of water allocation, so there was a need to flesh out more precisely just how water would be redistributed. It was recognised that a separate, more pragmatically oriented policy was needed to spell this out.

This was eventually to become the WAR position paper. I go on to describe briefly the actors and the processes involved in drafting the reform, and analyse the contents of the reform documents, highlighting how water users were categorised and associated with particular characteristics. I then tease out the implications of this. Within a few years, population growth will take us below this level. South Africa already has less water per person than countries widely considered to be much drier, such as Namibia and Botswana. The British economist and demographer Thomas Malthus did the same thing with land and food production over years ago.

In his influential work, An essay on the principle of population 1 published in , he argued that population growth would always outstrip productive capacity, and hence facing scarcity would be the permanent plight of humankind. Cairncross takes issue with the fact that Falkenmark only took account of water that could be abstracted from river flows and neglected the vital importance of rain-fed agriculture in many arid and semi-arid areas. Moreover, his focus on flows, rather than stocks, ignores large lakes and water reservoirs. Hence, such accounts of physical scarcity are framed in a neo-Malthusian vein.

They are rather simplistic and reduce the multi-dimensional phenomenon of water availability — involving social, political, meteorological, hydrological and agricultural factors — to an issue of physical quantification. This second-order scarcity may be perceived as a dearth of adaptive capacity. These factors lead to situations of localised scarcity. The water scarcity discourse in South Africa, however, downplays such aspects and regional differences.

Hence, the strong focus on physical quantification downplays the multidimensional nature of water management. Framing the issue of water access mainly in terms of a problem of physical dearth works to preclude other perspectives. Whereas the drafters of the NWA had been preoccupied with quantity concerns, quality was relegated to the back seat in the process of drafting guidelines for reform.

Hence, the emphasis came to rest on the need to quantify the available water in order to facilitate reallocation of use rights. The focus on compulsory licensing as a means of redress was the key, and it dominated much of the reform process. A premise of compulsory licensing, however, was the assumption that it could not proceed without an accurate assessment of available water resources. The registration of water users commenced in , 4 when the then Minister of Water Affairs and Forestry, Ronnie Kasrils, delegated the power to register water use and issue registration certificates to the Regional Directors.

All water users over and above Schedule I were required to register their use. The ultimate aim of WAR was to convert all certificates into licences. The database basically contains information about the source of water the Komati River, Lomati River, and so on and the purpose and quantity of water registered by the users. In the case of agriculture, information was provided on how many hectares are irrigated, the type of crops for which water is registered, the start date for planting and growing days per season, and the type of irrigation system used.

Even 0. Though the ultimate aim of WARMS was to create a comprehensive database of licensed water users, the initial purpose was primarily billing. The registration of water uses followed the Pricing Strategy, published in DWAF , which outlined the cost of water use differentiated by geographical location and sector. WARMS was a means to charge users accordingly. Compulsory licensing The correct assessment of the availability of water both surface and groundwater for allocation to the various users in each affected catchment is the cornerstone of the compulsory licensing process.

All existing and potential users were subsequently invited to submit applications for water use licences. These would then be issued based on certain criteria that included applying the ideals of affirmative action, thus emphasising the importance of issuing licences to historically disadvantaged individuals HDIs. Compulsory licensing was one of the pillars of the allocation process.

In the quotation from the Ninham Shand website above, scientific accuracy is portrayed as the linchpin of compulsory licensing. Uncertainty and contestations were rife in terms of modelling approaches and the optimal way of going about the estimation of water flows and abstractions.

Hence, the emphasis on scarcity and holistic management generated a belief that a sophisticated system of quantification and registration was needed to gain an overview of the available water resources and their use, and that compulsory licensing could only be carried out once water rights had been accurately identified. And how was it carried out? The account that follows is by no means exhaustive, but aims to give an impression of some of the key players, in order to understand how these shaped the emerging perspectives and discourses around water allocation. The WRM component had two main aims: firstly to develop methodologies for water use allocation and monitoring that involved the rural poor, and secondly to test these methodologies in pilot catchments.

The component had as its core the objective of fleshing out the principles of allocation that were inherent in the Act, and of making these realisable. Within DWAF, it was the Director: Water Allocation who became responsible for driving the whole process of fleshing out such methodologies for allocation. The consultant appointed by DFID to oversee the WRM component played a key role in this regard, and worked in tandem with the Director to move the process forward.

The two of them were the signatories of the Project Implementation Unit PIU , which was responsible for approving procurement of consultancy services and overseeing the whole process. One of the five outputs — output 3 — of the WRM component was to produce a toolkit of allocation methodologies and monitoring procedures which would take particular cognisance of the needs of the rural poor. Developing generic allocation procedures was interpreted as describing how the Act would be implemented in practical terms, which included setting up an expert advisory panel that would act as a sounding board in the formulation of allocation principles.

The Expert Panel and other actors Free download from www. Attendance varied at the four meetings. Provided below is an overview of people who were present at all, or at least three, of the meetings, to give a feel for the composition of the panel. No substitute was found, and so the panel did not have any representatives who were knowledgeable about the land reform process. Initially the debate, as reflected in the minutes of the meetings, centred on what the task at hand actually was. Was the idea to develop a strategy, or a framework?

Was it a policy or not? Both the lawyers on the Expert Panel had been part of the drafting process of the NWA in various capacities. The consultants were mostly environmental specialists. One of them had been intimately involved with the drafting of the NWA and took on the responsibility of developing and implementing regulatory measures in terms of protecting aquatic ecosystems, but later moved abroad and was no longer involved.

The CSIR representative hailed from an institution at which water-related research tended to have an environmental bent. Its research activities with respect to water were located within other research themes such as ecosystems management, environmental impact assessments, and the linkages between water, land and marine ecosystems. The Commission was established in , in accordance with the Water Research Act. Its mandate was to support water research and development, as well as the building of a sustainable water research capacity in South Africa.

This included the creation, dissemination and application of watercentred knowledge, which focused on water resource management, water-linked ecosystems, water use and waste management, and water utilisation in agriculture. The Director of the Water Utilisation in Agriculture section of the WRC was an ardent advocate of water markets, which was also reflected in its research portfolio.

Fluid Rights Water Allocation Reform in South Africa

The IWMI, on the other hand, was a newcomer. It established a regional office the head office being in Colombo, Sri Lanka in Pretoria in , two years after the Act had been passed. It emphasised collaborative research and partnerships and therefore liaised with government departments, NGOs, research organisations and networks.

Although they had no formal involvement in the policy process, they were part of the informal network and were also contracted to work on particular DWAF assignments. For her part, she perceived several academics associated with the University of Pretoria and other institutions as being only interested in models personal communication. These, he maintained, would be better exposed if DWAF had arranged to meet with individuals to have one-on-one talks in combination with smaller, more informal groups.

In his view, it was not really a consultative process as there was no space for learning. The fact that other processes were going on in parallel was hampering the ability of the experts to bridge gaps email communication, 17 November There were misgivings within the Department on the style of the drafting process.

The consequence was that, in my opinion, a very flawed document was taken out to stakeholders, and that many of the problems could have first been sorted out in-house. Knowledge making was thus internalised within a group of a few individuals. The indaba referred to above was convened in March to discuss progress on the WAR. The position paper was made public in January The process of taking the flawed document out to stakeholders see above occurred over a nine-month period in Nine provincial stakeholder meetings were convened, with the consultation process culminating in a national consultative meeting that was held in Pretoria in April Stakeholders did not actively participate in the identification of issues themselves as the frame and focus of the main issues were already in place, and what they were expected to do was to comment on its content.

Water projects were seen as the means to perform miracles. Now, he continued, these romantic images are being re-invoked, but this time for emerging farmers. In his opinion, these would fail, mainly due to lack of capital, markets and financial resources. In his opinion, foreign investors perceived an increasing level of uncertainty and risk as a result of the lack of clarity of the WAR. He cited the case of a client of the CSIR who had been unable to get a water licence, so had withdrawn a R3. According to him, the reform process was sending potential business partners scuttling and was creating low investor confidence.

The primary aim of the reform should have been to make sure that licences were made secure and reliable, in order to promote investor confidence and boost the South African economy interview, 2 May This view speaks directly to the GEAR macroeconomic strategy of boosting the economy through attracting foreign capital see Chapter 2, page In this instance, the representative from the CSIR was framing the problem in terms of how to facilitate the transition from agriculture to industrialisation, and how to make licences secure in order to attract FDI.

By construing redistributive efforts in terms of their potential to disrupt existing economic interests, this discourse largely favoured existing users, but underscored the potential of trade as an incentive to transfer agricultural water towards industrial uses. Its livelihoods focus gradually grew more prominent and adopted emerging new ideas, such as the multiple-use systems MUS approach. This approach highlights the integrated nature of water in rural households: water from multiple sources is used for multiple purposes, including domestic and small-scale production uses Moriarty, Butterworth et al.

This approach focuses far more on the integrated aspect of the IWRM paradigm, but concentrates on the household level rather than the basin level. The increasing focus on small-scale agriculture and livelihoods raised concerns with respect to the role of statutory law in general and formal licences in particular, and the overall role of water in sustaining livelihoods. IWMI helped to convene workshops on water use in agriculture and also on customary water rights and legal pluralism. A key event was the conference on water and legal pluralism with a focus on Africa the African Water Laws conference , which was held in January and attended by a host of lawyers, managers, policy-makers, NGO representatives and academics.

The conference was convened as part of a collaborative three-year research project that focused on legal pluralism and integrated water resource management IWRM through action research, capacity building and advocacy, a process in which IWMI was a key partner. The papers presented at the conference dealt with cases from a number of African countries Kenya, Tanzania, Zambia, Zimbabwe, Malawi, Ethiopia, Ghana and South Africa , but also included a paper from the Andes region.

Hence, there is a dearth of knowledge about, and an obvious need for, more detailed research of the nature of customary water use in South Africa, particularly because the apartheid era effectively hindered the establishment of a robust African peasantry. The conference produced some important recommendations, among them the need to raise the threshold of registration requirements so that those needing water for livelihood purposes did not have to go through the cumbersome and bureaucratic process of obtaining a licence. Inspired by multiple-use thinking, the need to better integrate domestic and small-scale productive uses was emphasised.

However, suffusing the debates on customary law were discourses on the ideals of collective action, and of communities as being inherently more equitable and capable of sustainable management. This was rather sweeping, and also striking in light of the paucity of empirical material with respect to documenting customary water laws in South Africa.

[PDF] The Dynamics and Discourses of Water Allocation Reform in South Africa - Semantic Scholar

The livelihoods perception of licences regarded licences with trenchant scepticism, rather than seeing them as State-backed security. The strongest advocates for the livelihoods perspective saw licences as tools of deceit and dispossession, which served to entrench existing power patterns rather than produce new opportunities for the rural poor. In addition, licences were envisaged as an administrative nightmare in terms of necessitating the registration of swathes of smallholders scattered throughout the rural areas.

The issuing of State-backed licences, then, was regarded as a process of entrenching power in the hands of the already powerful. Such discourses do not grow out of a vacuum, but are influenced by the political economy conditions within which they emerge. While this view was in favour of protecting the property rights of existing users and fending off State interventionist elements of the WAR, this also created a dilemma.

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  • Clearly, the path to industrialisation and growth meant getting water out of the commercial agricultural sector. How could the idea of protecting the rights of existing users — most of them commercial farmers — be reconciled with the urge to minimise their stake in water resources? One solution would be to encourage trade, and rely on the idea that farmers would willingly trade their water rights with industry if the price was right this assumption, as Chapter 4 will show, did not always hold true.

    This view had much in common with the RDP in terms of its redistributive emphasis, but failed to deal adequately with the nature of the political power struggles that ensued after the transition and the associated negotiated settlement, in particular the matter of traditional authorities. Given the nature of the forced uprooting and labour-migration systems see Chapter 2, page 16 of the past, and the current migratory patterns which have given rise to bouts of xenophobia, the idealised idea of stable communities needs interrogation.

    The above highlights how the concept of use rights, and in particular licences, were not givens, nor mere reflections of established relationships, but were actively formed through the ways in which particular terms and ideas were contextualised and given meaning. The next section examines how these different interpretations engaged in a struggle for dominance. Water Allocation Reform: On paper Law cannot be dissociated from its social and political context: one needs to understand whose ideas and perspectives are perpetuated and institutionalised.

    Law and policy do not only mirror and create power structures, but also make for meanings and understandings of identity Cheater ; Gohen quoted in Oomen This is a key point: that law and policy help to fashion certain identities. In the sections that follow, I will go through the various revisions of the water reform policy documents in some detail, highlighting how water users are categorised and associated with certain characteristics through the use of particular terms and concepts.

    The metaphor certainly struck a chord, for some a dissonant one, and many actors in the reform process were deeply unhappy with the name change. In the words of the CSIR representative on the Expert Panel: It [the allocation reform] is a world-class policy, but the acronym is going to fudge it all up. I am amazed at the short-term memory of this country. Not long ago blood was flowing down the streets, thousands of people were victims of violence and we were close to civil war, and then they start a reform by declaring war.

    It is insane…The WAR is not in the spirit of reconciliation. Interview, 2 May It draws attention to the explicit ways in which language embodies power. Moreover, it reflects the war raging amongst the people involved in the policy-making process. It is a war not over resources, but over discourses, deploying as ammunition concepts, terms and words to tell persuasive stories. Policy narratives and the construction of social identities Below is the first passage of the introduction to the final WAR paper — now called a strategy — in order to give the reader a sense of the style and tone of the final document As custodians of the national water resource, the Department of Water Affairs and Forestry must promote the beneficial use of water in the best interests of all South Africans.

    In order to do this, water allocations must be carried out in a manner that promotes equity, addresses poverty, supports economic growth and provides opportunities for job creation.