Water rights: Here’s what farmer buyers should know

Water rights remain a contentious issue in farming, with many growers frustrated by the complex, bureaucratic system. Uncertainty often surrounds who controls water from a dam on newly purchased land, and whether the farmer can take full responsibility for it.

Food For Mzansi spoke to experts to understand what rights farmers have to natural resources found on their farms.

Department of water and sanitation (DWS) spokesperson Wisani Mavasa said the prospective buyer of a farm remains responsible for fully confirming the rights of water use on their farm.

“A water source, be it dam(s), river abstraction points, or boreholes found on a property, does not necessarily belong to that property, or that the prospective buyer have a right to all the water found on or bisecting the property.

“The property owner may have full rights of use of the water, however, restricted to maximum volumes per annum. The safe supply of water differs and needs to be confirmed prior to ensure that the intended farming enterprise is not found wanting when water is needed,” she said.

Department of water and sanitation

Mavasa said the seller of a farm with a lake, dam, river, or borehole should back their water use claims with a legal document. This can be from either the irrigation board, water user association, local water scheme, or the department of water and sanitation.

She said the department has always been willing to assist farmers in addressing the water rights issue as soon as possible. This is because water is crucial to the farming enterprise and investment.

“A prospective buyer may send a written request to the department of water and sanitation to confirm the lawful rights of use of the property, stipulating the current owner of the property and property description as per title deeds.

“A request must be sent to the provincial head of the department of water and sanitation, or chief executive officer of the relevant catchment agency once established. Alternatively, more information on the water use and licenses may be accessed on our website,” she explained.

Understanding the process

Hydrogeologist from Ground Water and Earth Sciences (GEOSS), Lizanne Smit, said groundwater infrastructure and studies are costly. However, there are many economic spin-offs for those farmers opting to use groundwater.

Smit said it is important that a farmer follows the correct procedure to get the water rights in order. Do this before using the water, even in the case of a borehole.

“Today, the National Water Act No. 36 of 1998 regulates the use of water across South Africa. As such, the national government and the minister of water and sanitation are the public trustees of South Africa’s water resources.

“Accordingly, since 1998, water is considered a national resource and, by implication, does not belong to any one person.”
Lizanne Smit

“Once a borehole has been drilled and a feasible water supply has been determined using scientific methodologies, a process of registration or authorisation ought to be followed, depending on the intended usage,” she said.

Smit noted that farmers need to know the process of submitting a water use license is lengthy. It requires the submission of technical documents and reports, which agencies like GEOSS are able to do.

Know what you need a license for

Farmers should also note that they cannot change the water use after the authorisation process has started.

“This is based on the rule that there can only be one licence per property. For example, the authorisation one applies to store water must also include water that is taken from surface water or groundwater sources.

“Already being in possession of one type of authorisation for one’s property will mean applying to DWS for an amendment to include further water uses,” she said.

According to Smit, changing water use after the process had started could delay the process by about two years, resulting in more frustration.

“Be clear on the intentions of your water use. Catchment management agencies follow a particular process when assessing potential users and use. Farmers are strongly encouraged to engage different legislation, such as Section 21 of the National Water Act and other pieces of legislation,” she said.

Plan to drill a borehole?

Katlego Ngwane is the founder and chief executive of Katika Consulting. She said farmers should know that when they buy a farm that has a river, lake or borehole, it does not automatically mean they can use that water or that it belongs to them.

“You need to apply to the department of water and sanitation for a water use license and therefore permission to use that water for irrigation.

“It is quite an extensive application because it is just not saying you want water. You need to tell them how much you need and what it is going to be used for. You must give a technical breakdown of the need, which includes an opinion of a hydrologist.

“If you [are] going to drill a borehole, you need to supply them with drawings and technicalities from specialists about the borehole and how it will work,” she said.

Ngwane said it is important for farmers, when they purchase a farm, to ask the seller about the water rights. If the seller has the license, the buyer can just change the title.

It is possible that a license can be changed to the new owner’s name. If the landowner does not have the water rights, a buyer can offer a lower price, she added.