Under-the-radar restrictions of water-use entitlements hamper farming
Water can no longer be privately owned and has been delinked from land ownership
The government’s intentions concerning the expropriation of land without compensation have been preoccupying the agricultural sector in SA for the better part of 2018.
So important is this issue that it has made nearly everything else affecting farming in the country seem almost trivial by comparison.
While the public consultations about land ownership have given many South Africans a far deeper appreciation of the significance of land to the majority of our people, the government’s actions regarding the ownership of water-use entitlements — which is fundamental to the value and actual use of land — seems to have largely escaped people’s attention.
Since the commencement of the National Water Act in 1998, the ability to use water in this country has moved from the private to the public law realm. The common law principles governing the private ownership of water ceased to exist in SA on October 1 of that year.
At a stroke of the proverbial pen, the government became the trustee of all of SA’s water resources, in a similar vein to what would later follow with respect to the mineral resources and biological diversity of this country.
This trusteeship doctrine means water can no longer be privately owned as property in a tangible sense. The use of water was, in effect, delinked from land ownership and could forthwith only be exercised as an entitlement, as allowed for in terms of the National Water Act.
The water affairs minister, vested in terms of section 3 of the act with the trusteeship over all water in SA has, for the past 20 years, been solely responsible for ensuring water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all South Africans.
The constitution’s property clause must, however, be carefully read as it also states that the government may not be impeded from taking measures to achieve land, water and related reform to redress the results of past racial discrimination.
Although water can no longer be privately owned in a tangible sense, an entitlement to use water remains “property” to be used and dealt with by the owner of such entitlement, in accordance with the provisions of the act. This includes the ability to transfer such water-use entitlements.
In January 2018, the acting director-general of the department of water and sanitation issued an internal legal services circular to the effect that the National Water Act does not allow for the transfer of water-use entitlements to third parties, either temporarily or permanently. The reasoning behind this radical departure by the department was, according the acting director-general, the apparent misinterpretation of a section of the act (section 25) by the department itself for more than 17 years.
Seeing that the transfer of water-use entitlements has since 2001 been allowed and officially endorsed by the department in terms of the act, the implications of its apparent revised position came as a shock to the agricultural sector.
The ability to transfer water-use entitlements is frequently vital to farmers. Any restriction could have enormous implications for the agricultural sector. Large areas of cultivated land can often be saved through the temporary transfer of scheduled water allocations between farmers, mainly from cash crops to permanent crops.
This ability also allows for thousands of seasonal job opportunities to be saved in times of drought, such as what the south-western parts of our country have experienced over the past number of years.
The availability of water and the legitimate expectation of the ability to lawfully transfer water-use entitlements in accordance with the requirements of the law, are also crucial with respect to farm property values.
It is against this backdrop that, in October 2018, Western Cape farmer Johann Conradie approached the court for assistance in the first of potentially several matters concerning the ability to transfer water-use entitlements. Conradie’s matter is illustrative of the predicament facing the agricultural sector arising from the department persisting — against the better advice of many water law experts, including some dissenting voices within the department itself — with its revised policy regarding the ability to transfer water-use entitlements.
The water-use entitlements at stake entail water for irrigation of a wheat crop that had to be harvested within the next couple of weeks, as well as new crops to be planted during December. The combined potential losses amount to about R13.5m, as well as placing the employment opportunities of 80 farmworkers at risk.
While Conradie succeeded in obtaining temporary relief to the effect that water-use entitlements may be transferred from one property to another without interference by the department (the interpretational and legal principles will be interrogated at a later stage) the department’s apparent desire to interfere with water-use (property) entitlements are clearly worrying.
At its national conference in December 2017, the ANC declared that its national executive committee would start the process towards the amendment of the constitution’s property clause to allow for land redistribution without compensation. Last week, parliament’s joint constitutional review committee adopted a recommendation that the constitution should be amended to allow for expropriation without compensation.
The constitution’s property clause must, however, be carefully read as it also states that the government may not be impeded from taking measures to achieve land, water and related reform to redress the results of past racial discrimination. It is therefore clear that the issue of land reform should not be seen in isolation from similar efforts to achieve water reform.
In March, ANC MP Hlomane Chauke said that a debate in the National Assembly on the takeover of agricultural dams as a national resource was on the cards and that there was no way water could be separated from land. “It is another struggle that we must fight and win,” he said.
While the ANC’s statement last December included an important caveat to the effect that land redistribution should not negatively impact on the agriculture, food security or other sectors, it can only be hoped that the same caveat applies with respect to efforts by the government to redistribute water.
• Rabie is head of natural resources at Agri SA.