The Reform of Water Rights in South Africa

South Africa 's water law dispensation changed dramatically with the promulgation of the National Water Act 36 of 1998. The previous distinction between public and private water was abolished and the Minister of Water Affairs and Forestry has been appointed to act as trustee of all water resources on behalf of the nation in accordance with the public trust principle. Through the application of section 4(4), exclusive rights of water use, which were in force before 1998, were replaced by water allowances, granted in the discretion of the relevant authority.

Three key issues are investigated in this paper. Firstly, the history and development of water rights in South Africa are discussed. Secondly, the system of water allowances is analysed to determine what the influence of these measures on nature conservation and water supply to informal communities is. The aim of the National Water Act is weighed up against the disadvantages which individuals suffer through the infringement of their vested rights. The viability of the principle that the nation's need for sustainable water resources carries more weight than the individual's exclusive right of water use is discussed with reference to nature conservation and the need of informal communities.

Thirdly, the question whether the state, through the application of the public trust doctrine as embodied in the National Water Act , expropriated vested rights in property or whether such infringement merely constituted a deprivation, is analysed. The new concept of property in terms of section 25 of the Constitution of the Republic of South Africa and the distinction between deprivation and expropriation are examined. It is indicated that the concept of property in South African law has been extended to include not only ownership but also rights in property . Existing water use rights, which were available to certain individuals in terms of the 1956 Water Act , can be classified as property. The requirements for deprivation, expropriation and inverse condemnation are discussed with reference to applicable case law.