Farmers who had water rights transfer applications rejected in the past, now stand a better chance. This follows the Constitutional Court’s ruling that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act.
The Constitutional Court has confirmed that the department of water and sanitation’s (DWS) interpretation of sections 25(1) and 25(2) of the act was incorrect. This follows a lengthy five-year-long court battle between the South African Association for Water Users Associations (SAAFWUA), farmers and the DWS.
Not only can water be transferred, the court ruled, but receiving financial compensation for transferred water use entitlements is neither prohibited nor unlawful in South Africa.
According to Nic Knoetze, CEO of SAAFWUA, the ruling stands to benefit the agricultural sector on various fronts.
“So what’s now happening is that in the past where water licenses were not approved because of their interpretation, those applicants need to now re-apply. [The applications] then need to be handled in line with the Constitutional Court’s ruling,” Knoetze explained.
Stale and unimplemented
The matter emanated from a memo issued in January 2018 in which the DWS determined that water use entitlements could not be transferred.
According to Knoetze, the memo contradicted the provisions of section 25 of the National Water Act, as well as the DWS’s own interpretation of the law and its established practices in water use entitlement transfers, dating from 1998 when the act came into effect.
As a result, SAAFWUA stepped in because the DWS’s interpretation had a negative impact on irrigation farmers and the Water Users Association (WUA) or Irrigation Board.
“If the farmer is not using it, why can’t somebody else use it because we need to have that income,” Knoetze pointed out.
Reform needn’t take a backseat
What’s more, the department raised concerns that if water rights holders are entitled to transfer such rights, it could be counterproductive to South Africa’s Water Reallocation Reform Policy introduced in 2007.
While inequalities in access to water remain a huge concern in the country, Knoetze said the department had ample opportunity within the act to proceed with water reallocation reform.
“The department can make a condition that water licenses will only be issued if, for instance, 40% is for black economic empowerment… but do not interpret the act incorrectly,” said Knoetze.
The Draft Water Reallocation Reform Policy has not been finalised.
Who’s the lawful water user?
On top of this, industry players like SAAFWUA are still waiting for the verification of the validation process to be finalised. This is said to shed light on who uses water in the country and how much.
“So that includes everybody registered in 1999-2000. But after the registration process, there needs to be a verification and validation process to see who is the lawful water user in the country,” he said.
According to Knoetze, because the process has not been finalised, all sorts of tricks are being used.
“Let’s finish the verification and validation process so that the department knows who are the lawful water users in the country and then with that data, take it from there.”
Unfortunately, the process is far from done. Some water catchments are about 70% finalised, some 90%, while others are only 4% finalised, Knoetze explained.
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Over-regulated or lack of implementation
Agri SA’s legal and policy executive, Janse Rabie, said the victory is important to the agriculture sector. Agri SA supported and paid for the legal costs from the outset.
“The ability to transfer such entitlements from one person to another, and from one property to another, is crucial with respect to efficiency in the use of water, the value of farmland, and to property entitlements in general.
“To that end, this judgment vindicates our steadfast resistance to the government’s continued assault on property entitlements,” Rabie said.
While there is room for the water act to be changed, it first has to go through a consultation process and parliament.
When asked if he believed that South Africa’s water sector is overregulated, Knoetze said no.
“We have one of the best water acts in the world since 1998 but it is not implemented fully. Our water management in the country is not at a very good place.”
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