The White Paper on a National Water Policy for South Africa was released by the Minister of Water Affairs and Forestry in April, 1997. Beginning with the distribution in May,1995 of the booklet ‘You and Your Water Rights’, an extensive process of public consultation was embarked upon.Meetings were held in all nine provinces, aimed specifically at soliciting the views of the rural poor and disadvantaged communities. The opinions of other interest groups, including agriculture, mining, municipal users and environmental groups were also obtained. This process culminated in the adoption of a set of Fundamental Principles at a Water Law Review National Consultative Conference in East London in October, 1996. The final ‘Fundamental Principles and Objectives for a New Water Law for South Africa’ were approved by Cabinet in November 1996.

The Fundamental Principles provide the context within which this White Paper is formulated.The primary objective of the White Paper is to outline guidelines for the management of water, the drafting of effective legislation, and the creation of programmes of action. It aims to promote equity in access to and benefit from the nation’s water supply.

Simultaneously, building on the 1994 White Paper on Water Supply and Sanitation, a new Water Services Bill was drafted. The Water Services Bill, released on 23 May 1997, is discussed in the accompanying Legislative Update.

2. The Need for Change

The Water Act of 1956, the current legal understanding of water use, was founded on two important ideas:

• The riparian principle which establishes a link between the right to use water and the ownership of the land adjacent to that water; and

• a separation between public and private water.

Both these concepts found currency in the previous dispensation because they served the political and economic interests of the ruling classes. The distribution of water-use was racially biased, and access to water was a privilege of those with access to land and political and economic power. As a result, not only were the majority of South Africans excluded from the land but they were also denied direct access to water and the benefits from the productive use of water.

To fulfill the new Constitutional mandate, a review of the national water use policy and the water law is required.Accordingly, the White Paper on a National Water Policy states that it will ‘actively promote the values enshrined in the Bill of Rights.’ It identifies the right to equality as fundamental to the development of a new water policy. This right requires equitable access by all South Africans to, and benefits from the nation’s water resources. It also demands an end to discrimination on the basis of race, class or gender.

The overall management of water resources is based on the principles enshrined in the ‘Fundamental Principles and Objectives for a New Water Law for South Africa.’

The White Paper identifies the following core objectives:

• The principle of equity is central to the water law reform process. It pays special attention to addressing the needs of those who were historically denied access to water. The White paper seeks to identify the policies, institutions and practices that will support the principle of equity and equitable access.

• To achieve optimum, long-term, environmentally sustainable social and economic benefit for society, National Government must ensure that the country’s limited water resources are used to improve the quality of life for all South Africans.

One of the principle priorities of Government is to ensure that ‘all people have access to sufficient water.’ To achieve this, the White Paper identifies three priority areas:

• Basic needs: As there is as yet no definition of ‘sufficient water’, the current RDP provision of 25 litres person per day, is seen as a short-term target. The new approach allows for the progressive increase in water supply and sanitation services.

• Environmental Reserve is the only other water, after providing for the basic human needs, that is provided as a right. Claims for water-use rights that limit the availability of water required to meet the basic needs, will not be recognised.

• International obligations: South Africa will honour all legal obligations and agreements about water in shared river basins in a just and equitable manner. Where necessary national government will have the right to allocate water to downstream countries in preferance to local water allocations.

Some of the key proposals which will guide water management are:

• Water as a national resource

The White Paper confirms and formalises the status of water resources as an indivisible national asset. All water is part of a common resource and will be required to meet the goals of water resource management, subject to a common approach. National Government will act as custodian of water resources, and will exercise the powers of a public trust.

• Water as a right

Only water required to meet basic human needs and maintain environmental sustainability will be gauranteed as a right. This will be known as the Reserve. All other water usages will only be recognised if they are beneficial to the public interest.

• Obligations to SA neighbours

In shared river basins, Government wil be empowered to prioritise other uses to ensure that the requirements of neighbouring countries are met. Management will be carried out in regional or catchment water management areas. Provision will be made for phased establisment of catchment management agencies.

• System of allocation

The Riparian System, whereby the right to water is tied to the ownership of land along rivers, will be abolished. Under the new system, allocations will be made on the basis that it promotes water use that is optimal and for the achievement of equitable economic and social development. The new system of allocations will be phased in, beginning with water management areas already under stress. It will use water pricing, limited term allocations and other administrative mechanisms to create a balance between the demand and supply of water.

• Water charges

To promote equitable access to water for basic human needs, provision will be made for some or all water charges to be waived. Further, to promote access for disadvantaged communities, some or all the charges of water used for productive purposes may also be waived. Users will be charged, on an equitable basis, the full financial costs of providing access to water. All water use, wherever in the water cycle it occurs, will be subject to a catchment management charge and resource conservation charge.

• Water resource protection

All sectors must develop a water use, conservation and protection policy, and regulations will be introduced to ensure compliance in key areas. Farming, including agriculture and forestry plantations, and the mining industry will have to re-evaluate their use of and impact on our water resources, and will have to pay a price that reflects the real economic costs of water.

The recognition of the government’s role as custodian of the ‘public trust’ is a central part of the new approach to water management. The main idea is that government has a duty to regulate water use for the benefit of all. The new management system must take account of the public nature of water resources and must ensure that there is fair access to these resources.

The National Government is committed to carrying out these obligations in a way which:

• guarantees access to sufficient water for domestic purposes;
• ensures that the requirements of the environment are met;
• makes provision for the transfers of water between catchments;
• respects South Africa’s obligations to its neighbours; and
• fulfills its commitment as custodian of the nation’s water.

The White Paper also addresses matters such as the environment and pollution, which are concurrent national and provincial functions. These matters will, therefore, be addressed in the spirit of co-operative government. This recognises that, while many governmental functions are undertaken in national, provincial or local spheres, there must be a commitment to co-operation between the spheres. This will ensure that the objectives of equity and corrective actions are promoted and that existing differences in economic and social power are not perpetuated.

7. New Licensing Procedures

Existing water users will have to apply for registration of their water use within a set time period. The basis for granting a license will be determined by the extent to which such water will be used to the benefit of the public. To facilitate the process of allocation and review, licenses will be granted on a five year cycle with a maximum length of forty years. Licensed users will have both privileges of use and responsiblities and will be subject to various charges, including a catchment management charge.

Applications for registration will be assessed according to priority. Special consideration will be given to the requirements of the reserve, existing uses, international obligations and long- term planning requirements.Before allocations can be made resources will have to be assessed to determine the location of water use, the volume of water to be used, its quality and reliability.

The new water pricing policy will reflect the value of water as an economic resource, the costs incurred to make the resource available, and the methods used to cover those costs. This strategy is viewed as one in a range of tools to promote the efficient and productive use of water.

All significant water resource use, including that used for forestry plantations and industrial waste disposal, will be charged. Acknowledging the complexities of setting a fair water charge, the proposed policy will remain sensitive to historical realities. Water pricing will therefore be phased in over a reasonable period of time.

The only exception will be in respect of the reserve for basic human needs. This will be provided free of charge, through the adoption of lifeline tariffs, so as to ensure that all South Africans can achieve access to basic services. Further, water resource development will increasingly focus on projects that provide for basic human needs, assure the environmental reserve or assist in meeting South Africa’s commitment to its neighbours.

The price of water will vary according to its location and will be calculated on a system, catchment or sub-catchment basis. It will include operating, maintenace and capital costs, as well as a water resource management levy and a conservation charge.

Disadvantaged communities and individuals will be supported through specific measures such as claims for land restitution, land reform or other programmes of corrective action. These may include periods during which the full cost of water will not be charged. Where the imposition of the full water price discourages the use of available water, provision may be made for some elements of the tariffs to be suspended for a limited period of time. Particular attention will be paid to evaluating whether equity objectives and fair resource allocations are achieved.

Central to the Department of Water Affairs and Forestry’s human resource development plan is building the capacity of women. Recognising the historical, traditional and cultural contributions of women, it aims to include women, especially those from rural areas, in various areas of water management. This will be done by providing them with information on simple water purification procedures, as well as making it possible for them to work through water committees, and ultimately in Catchment Management Agencies.

Further, emphasis will be put on building the capacity of staff from historically disadvantaged communities with a view to strengthening multidisciplinary competencies. The Department of Water Affairs and Forestry will establish links with tertiary and technical institutions to ensure appropriate training of water managers. In addition, existing programmes of the Water Research Commission to develop technical capacity for water management will continue to be supported.

Locating itself within the new Constitutional context, the White Paper affirms the right of ‘access to sufficient water and food’ and ‘to health care services.’ It views the right of access to sufficient, affordable clean water as part of the government’s commitment to the delivery of primary health care services. Attention is given to the scale of poverty, especially in rural areas where more than 12 million people are still without access to water, and nearly 20 million without access to sanitation services.

In line with RDP priorities, the new water policy highlights the need for an integrated strategy to promote the growth of industry, to create an economically viable workforce, and to bring about greater equity in society. Finally, the White Paper establishes a connection between the right of access to water and the overall well-being of all South Africans.

Some points for consideration

• The White Paper expands on several of its founding principles, including its relationship to the Bill of Rights and the Consitution. It is unclear, however, how some of these policy positions will be translated into practical implementation strategies. How will concepts such as ‘basic human needs’ or the ‘environmental reserve’ be quantified? How will the specific needs of specific communities be drafted into operational plans? What are the envisioned strategies to reach the objectives set out in this document? What are the specific timeframes envisaged?

• A key notion is that of ‘co-operative governance.’ What are the specific roles and functions envisaged at the provincial, regional or local levels?

• What has been done to establish the intersectoral linkages mentioned in the document? How will departments such as Health or Land Affairs be included in implementation strategies? Within the context of intersectoral collaboration, where will co-ordinating responsibilities reside?

A joint team consisting of members of the National Portfolio Committee and the Department of Water Affairs and Forestry, is currently (10 to 25 July) conducting a study tour of all provinces. The purpose is to obtain public opinion on both the Water Services Bill and the White Paper on a National Water Pollicy for South Africa.

It is envisaged that dates for public hearings on both documents would be set soon thereafter. Comments can be submitted to the:

Director-General: Water Affairs and Forestry (Water Law Review),
Private Bag X313,
Pretoria, 0001.

PHILA

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