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Environment Magazine September/October 2008

 

April 2007

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Redressing Inequality: South Africa’s New Water Policy

In 1994, the fledgling democratic government of South Africa sought to redress the inequities of apartheid’s legacy by setting revolutionary water reforms in motion. Thirty-five percent of South Africans had no access to a basic water supply, and fifty-three percent lived without proper sanitation.1 The reforms also aimed to manage South Africa’s water scarcity situation as efficiently as possible.2 The resulting policies, namely the Water Services Act of 19973 and the National Water Act of 19984 are world-class pieces of water legislation, especially in light of South Africa’s turbulent and repressive political history. (See Figure 1 for a timeline of South African history as it relates to water politics.) However, the process of drafting and implementing water reforms has not been smooth sailing. The South African government has had to face many challenges to date, particularly those inherited from its apartheid predecessors.


The Khoisan and Water

The Khoisan, consisting of pastoralists (Khoikhoi) and hunter-gatherers (San), predominantly lived in dry, arid areas in southwestern Africa.5 Due to the low rainfall in that region, the Khoikhoi gradually adopted a mobile way of life and roamed the country with their cattle, following the local rainfall patterns. The San were even more mobile because they subsisted on hunted game and food gathered from the veld (the open country that characterizes much of southern Africa). These subsistence patterns uniquely suited the landscape as all land and natural resources, including water, were communally owned and people were free to use them.6 However, with the arrival of Jan van Riebeeck and the Dutch East India Company in 1652, who introduced their formal system of private land ownership, the Khoisan’s altruistic ways of reciprocity in relation to their land and natural resources were increasingly placed under pressure.


Dutch Rule: The Khoisan Lose Everything

Many changes were brought about when the Dutch East India Company took power along the Cape of Good Hope, one of which being strict control of the water and land the Khoisan had previously used for subsistence purposes.7 The Dutch East India Company’s burghers (settlers) gradually took up all land as freehold (an estate in land held for life either through tenure or through inheritance) along the area’s rivers, and many Khoikhoi were forced to work on Dutch East India Company farms soon afterwards as they no longer had access to land or water for their cattle.8

The settlement of land by the Dutch East India Company was legally formalized when, around 1685, certain burghers were granted land ownership based on court rulings. Those burghers who were fortunate enough to benefit from such rulings now also had control of any permanent water supply source that flowed across their piece of land. (This would subsequently become known as the “riparian principle.”9)

Subsistence for the San had always depended on the hunting of wild animals. However, because these animals were drawn to permanent sources of water (now controlled by the burghers), their traditional way of life, like that of the Khoikhoi, suddenly was also a thing of the past.


Under the British Crown

When Dutch rule ended in 1805, the British government took over the Cape Colony and began an extended process of water, land, and institutional reform. Two new developments that arose were a permanent land tenure system and the formalization of the riparian principle—which was slowly being incorporated into policy and practice over the first few decades of British influence.10 A particular focus was also placed on the importance of irrigation and agriculture, which culminated in the promulgation of the 1912 Irrigation Act.11

The discovery of gold in 1886 led to the settlement of a large number of hopefuls in the mining town of Johannesburg.12 The Rand Water Board was established in 1903 to satisfy demand for water supply and sanitation services in the greater Witwatersrand area (a low mountain range near Johannesburg), and legislation was passed soon afterwards to allow for the granting of water rights to mining operations with priority over other uses.13

While the government went to great lengths to supply the mineral-rich, financially lucrative areas of South Africa with water, vast numbers of rural South Africans were neglected. This situation worsened over time, particularly with the apartheid government’s creation of official “non-White areas” in South Africa, including so-called “independent” homelands, where millions of Black people were forced to resettle. (See sidebar for information on the classification of different races in apartheid South Africa.)

After the First World War delayed water resource development for a short time, a struggling economy and labor strife in the 1920s heralded the start of the Depression. The government responded by fast-tracking a number of large-scale waterworks to provide employment to destitute Whites, who had been a point of concern for authorities since the middle of the nineteenth century.14 This situation was partly the result of the scorched earth policy employed by the British during the South African War (1899–1902), which had led to the destruction of numerous farms owned by Afrikaners (White Afrikaans speakers) and also included confining noncombatants to concentration camps, where they lived under appalling conditions.15 While the government’s waterworks employment initiative proved to be successful for a while, it was not sustainable, and in the late 1930s the Department of Labour (DoL) was forced to hire a great number of Colored and Black laborers to complete the projects.16

After the National Party (NP) came to power in 1948, introducing apartheid as the government’s raison d’être, a series of prime ministers promoted an increase in the number and size of large water resource projects to spur economic development in South Africa.17 A number of small Acts of Parliament in the 1930s and 1940s gradually increased government control over water resources, culminating in the promulgation of the 1956 Water Act.18


The 1956 Water Act: A Tool of Deprivation Under Apartheid

The Water Act of 1956 gave rise to the Department of Water Affairs (DWA), predominantly mandated with the task of providing and allocating water for development in the agricultural sector, where a large part of the NP’s support base was located.19 The government’s policy of pursuing economic development to the exclusive benefit of White South Africans continued to expand in the following years and was given a decisive boost when the government announced its independence from Britain and the Republic of South Africa was created in 1961. Under apartheid, Black people in South Africa (who were officially denied the right to citizenship) had very few basic rights, a situation that was legalized by the promulgation of several discriminatory policies.20 This also affected their access to potable water and sanitation as the DWA continued to control the apportionment and development of South Africa’s water. Instead of being able to provide their people with these basic rights, the independent Black homelands had to negotiate to obtain water rights and use permits in competition with other users outside of their territories.21 Water thus clearly became a very effective weapon in the apartheid government’s arsenal of oppression and control.

The construction of large-scale government-funded water schemes increased through the 1960s, 1970s, and 1980s, while droughts in the late 1980s and early 1990s forced the implementation of emergency water schemes. These developments had the purpose of ensuring the continued operation of power stations and industry, as well as the provision of water for urban uses (which signalled a move away from the strong focus on irrigation).22

During the 1980s, however, it was becoming increasingly evident that the unsustainable way in which water had been managed so far had resulted in worrying levels of degradation of many of South Africa’s primary water resources.In addition, the global trend toward the  recognition and incorporation of environmental concerns into water resource management added pressure for change.23


The Dawn of South Africa’s Democracy

Following the first democratic elections in South Africa in 1994, the new government embarked on a quest to change the country’s philosophy, priorities, and approach to water resource management. The provision of basic water supply and sanitation to the majority of South Africa’s people, as well as the need for equity in the allocation of water and the benefits of water use were suddenly given high priority on the political agenda. The National Water Act of 1998 was a key milestone in the government’s water reform process and is bound to have far-reaching effects on social and economic development as well as environmental management in South Africa during the course of its implementation over the next few decades.24

The Revolution in Water Law

The Constitution of South Africa provides the basis of the country’s progressive environmental legislation by guaranteeing South Africans the right to a safe environment.25 South Africa, in fact, is the first country in the world to have adopted national water legislation that serves as a tool in the transformation of society based on social and environmental justice. In combination, the Water Services Act and the National Water Act were designed to achieve the following:

[...]redress the inequalities of racial and gender discrimination of the past; link water management to economic development and poverty eradication; and ensure the preservation of the ecological resource base for future generations.26

The National Water Act can be summed up by using the succinct idea of “some, for all, forever.” This suggests effectively managing the country’s most precious resource in a sustainable way for the benefit of all South Africans. What is particularly special about this legislation is its focus on those who are currently disadvantaged due to former apartheid policies and who, for example, still have to carry buckets of water to their homes  to eke out a barely sustainable level of existence.27

Some Key Principles

Below are four of the key principles that underlie South Africa’s new water legislation. Their successful implementation will help achieve the purpose of the National Water Act, which is to ensure that South Africa’s water resources are protected, used, developed, conserved, managed, and controlled in a sustainable manner.

Decentralization

As opposed to former water legislation, which did not make provision for public participation in the water management process, the National Water Act conforms to the Constitution and its call for people to participate in the decisionmaking process as and when it affects them. Another important element, drawn from the Constitution, is the subsidiarity principle, which stipulates that those functions that can be more efficiently and effectively carried out by lower levels of government should be delegated to the lowest appropriate level.28  (See Figure 2 for more on the tiers of South African water management.)

South Africa is divided into 19 water management areas (WMAs), which match the boundaries of major watersheds. The catchment management agencies (CMAs), to be formed at WMA level, will perform certain management functions that have been devolved to them.29 CMAs are required to cooperate and seek agreement on water-related matters among various stakeholders and interested parties.30 They also have governing boards to ensure that stakeholders are being represented and to prevent control of decisionmaking by powerful parties with vested interests.31 In addition, CMAs have a mandate to progressively develop catchment management strategies (CMS) to realize the protection, use, development, conservation, management, and control of water resources in the respective WMAs in which they operate. Until such time as CMAs have been formally established, the Regional Offices of the Department of Water Affairs and Forestry (DWAF) will continue to manage the water resources within the WMAs.32

Equitable Access

The National Water Act has embraced a return to “the commons,” which implies that the country’s water belongs to all its people, cannot be privately owned, and is held in public trust by the state.33 This notion, reminiscent of the Khoisan tradition, is also supported by an administrative licensing system. Under this system, the state, and more specifically DWAF, regulates the abstraction of a specified volume of water (for specific purposes, such as industry) from particular sources. The domestic use of water, which includes small-scale irrigation and the watering of animals for non-commercial purposes, is exempted from such license requirements.34 This new system is much more practical than the riparian principle and is also considerably better suited to a largely semi-arid country such as South Africa.35

Reallocating South Africa’s water to ensure that all of its people can meet their daily nutritional water needs is a very necessary adjustment. In addition, reallocation is also expected to encourage more efficient use of water by those South Africans who have historically had ready access to the resource and mistakenly accepted that it is available for use in unlimited quantities at minimal cost.36

Efficiency

To ensure efficiency, the social and economic benefits and costs and environmental costs of competing water uses have to be evaluated. In the case of South Africa, if water is allocated under the licensing system, the interests of all water users (including the environment) of the water resource in question must be taken into account. South African water legislation makes provision for two legal instruments to facilitate this process. The first enables those affected by decisions regarding the licensing process to voice their opinions, gives them the right to be provided with reasons for a licensing decision, and also allows them to appeal against a decision that might be unfavorable toward the interests they are defending.37 The second mechanism entails the use of economic instruments such as pricing mechanisms and financial assistance or subsidy programs.38

While it seems logical and important to attach value to a scarce resource to prevent it from being used unwisely or wastefully, the question of charging money for water is still a thorny issue in many parts of South Africa. South Africa’s citizens have a right to sufficient water to provide for their basic human needs (6.6 gallons or 25 liters per day), after which they are expected to pay for any additional water they may use.39 Over the years, many poorer urban communities have either adopted a culture of non-payment (which arose as a form of protest against the former apartheid government) or today simply cannot afford to pay the fees that are charged. People in rural areas who have previously had no reliable supply of potable water or formal sanitation systems are also reluctant to suddenly pay once service provision has taken place; previously water was free (although more effort was needed to source it).40

Despite the difficulties inherent in the water pricing process, there are fortunately also some examples of where this has functioned successfully. The city of Durban (Kwa-Zulu Natal, South Africa), for instance, has taken direct steps to enforce the 6.6 gallons (25 liters) per person per day principle by ensuring that the first “lifeline” volume of water (the amount of water necessary to live: 1,585 gallons or 6,000 liters per household per month) is provided free of charge. Where households exceed this demand for water, the principle of “the more you use, the more you pay” is enforced. This policy helps subsidize the costs of supplying water to the poorer parts of the community. With 93 percent of water services accounts being paid, Durban’s billing system makes it possible for all households (rich and poor) to receive the first 1,585 gallons (6,000 liters) of water per month free of charge.41

Sustainability

It is because of the acknowledgement of the interrelationship between social, ecological, and economic sustainability that the principle of the “reserve,” which comprises two components, was written into the National Water Act.42 The ecological component refers to that portion of streamflow quantity—of defined quality—that is required to remain in rivers to ensure the sustainable healthy functioning of aquatic ecosystems.43 It is imperative that these ecosystems continue functioning optimally because many people in South Africa rely on them for basic goods and services (for example, fishing) to sustain their livelihoods. The basic human needs component is defined as the water reserve required to meet several direct human needs for water, such as drinking and food preparation.44

The “reserve” in essence is a quantity of water that cannot be allocated to specific water users. Its purpose is to give effect to two types of constitutional rights that South Africans have. The first is their right to enough water to meet their basic needs, while the second is their right to an environment sufficiently protected by legislative and other measures to secure socioeconomic development that is also ecologically sustainable.45


Challenges that Remain

Despite the fact that the fundamental principles of South Africa’s National Water Act make it an impressive piece of environmental legislation by international standards, many serious challenges to implementation remain.

Lack of Human Resources

Staff turnover in all three spheres of government (national, provincial, and local) amounts to approximately 25 percent per year. This is problematic because delays in appointing new staff members result in overstressed government institutions. Experienced staff members thus tend to be overburdened and have trouble performing their duties while building the competency of the newly appointed staff.46

This is proving to be a serious issue in the Usutu-Mhlatuze WMA on the East Coast of South Africa, for example. According to interviews conducted with several DWAF officials in the area, the department is responding to various crises rather than engaging in systematic planning, service delivery, and water quality monitoring within the WMA. This is the direct result of inadequate staffing and the high staff turnover, which is resulting in the loss of experience and organizational memory from DWAF. In addition, no real provision is made to train new people to take on the responsibilities of more senior staff who have left the organization.47

Disconnect Between Resource Management and Supply

Another problem regarding the implementation of South Africa’s water legislation is the disconnect that exists between the management of water resources and water supply. While water resources are managed at the level of watersheds, defined by natural boundaries within WMAs as stipulated in the National Water Act, water services provision (largely the domain of the Water Services Act) takes place at the municipal level. What is problematic here is that local Water Services Development Plans do not take sufficient account of existing water resource management principles. This has the potential of resulting in a situation where more water is allocated for supply purposes than is feasible from an ecological perspective. Understandably, the urgent need to meet the water demands of the rural poor has outweighed the lengthy process of water resource management in the country, but such over-hastiness may have negative consequences in the future.48

Illustrative in this regard is the fact that water supply derived from 15 of the 19 WMAs in South Africa already exceeds sustainable levels.49 This is a consequence of a failure of communication between municipalities and CMA structures in the WMAs in which they are located. While the enormous backlogs associated with water sanitation and supply are indeed a pressing concern, so is the sustainable management of the country’s scarce national water resources.50

Perceived Lack of Financial Resources
 
While all spheres of government and their different departments receive adequate funds to successfully perform the functions expected of them, inappropriate management of these monies often results in a perceived lack of financial resources within government structures.51

This is a problem because it means that the taxpayers’ money is not necessarily used to achieve what the government collects it for. Middle- to high-income earners, who are taxed considerably to help uplift the lives of previously disadvantaged South Africans, are likely to be disillusioned by this tendency in the long term, an attitude that could ultimately result in lower support levels for the current government. It is the country’s poor people, however, who are the real victims here as it is they who rely most on the government’s promises to improve their quality of life.

Problems with Stakeholder Participation

There are also challenges when it comes to stakeholder participation, specifically in the context of the formation of the CMAs, and the amount of power that different groups of stakeholders have. In South Africa, a successful commercial farmer is likely to have greater capacity to negotiate and influence decisionmaking pertaining to water needs than his impoverished rural subsistence farmer counterpart. Great care thus needs to be taken to ensure environmental justice through stakeholder engagement processes. In addition, it is problematic to assume that all stakeholders can be engaged and informed in a uniform way. Stakeholders vary widely in their ability to understand and adopt governance processes or instruments that they are not familiar with and therefore an ideal governance system needs to ensure that the participation of stakeholders at all levels is carefully balanced and integrated.52

Another issue that is deemed problematic in this regard is the fact that it will take some 20 years to establish the CMAs and that currently their formation is being hampered by a lack of skills, which may make it difficult to ensure that these institutions are launched successfully and manage water resources as effectively as they are expected to.53 This of course complicates the decentralization process and the aim to increase public participation, both of which are so closely linked to the new water legislation.

Society’s Interests Not Well Articulated

Unfortunately as a result of the country’s apartheid past, the broad South African public has not been able to develop a strong culture of participation in government processes, nor has it learned to successfully articulate its interests.54 This may lead to a public perception that the government is not effectively responding to people’s needs and may in the long run also result in public distrust in government or voter apathy.55

Such attitudes have in fact recently started to emerge as previously disadvantaged South Africans are becoming increasingly disillusioned with the government’s perceived lack of effective service delivery to date. Perhaps if South Africans participated in decisionmaking structures to a greater extent, they would not only give the government a better idea of what they need and expect but would also develop a greater understanding of the many challenges that the government is facing in trying to fulfill its mandate.

Apartheid Legacies: The Case of Acid Mine Drainage

Finally, there are a number of historical legacies that are proving to be rather difficult for DWAF to handle. Mine closure is a particularly complex issue that will test how well the new environmental legislation fares in practice. South Africa is a mining economy with some of the richest and deepest mines in the world. To unlock the underground wealth they were searching for, mining companies had to invest in pumping out vast volumes of water as the country’s most sought-after minerals are overlain by the largest dolomite aquifer systems in southern Africa. Many gold mines have been closed or are reaching a point of imminent closure.56 This has given rise to the problem of acid mine drainage, caused by the underground water levels of abandoned mines rising again. This water becomes highly polluted when it, together with oxygen, comes into contact with the pyrites that have been exposed in the underground rock during the mining process. Acid mine drainage eventually results in the heavy-metal contamination of ground- and surface-water resources.57

South Africa’s government is currently finding it very difficult to engage the mining sector regarding this problem, with many mining companies refusing to accept responsibility for acid mine drainage and related environmental problems. This is partly due to the fact that during the apartheid era, the NP government had entered into a relationship with the mining industry in which it became a direct beneficiary.58 While this sustained the government during the years of sanctions and isolation, it also meant that the industry prospered in the absence of a genuine regulatory authority, fully aware of the absence of any consequences for its environmentally and socially harmful practices. One of the major challenges the democratically elected government in South Africa thus faces is how to change its role from collaborator to one of regulator and how to bring under control and subsequently repair the environmental damage that mining has caused in the country.59 This is particularly difficult in light of the fact that while the government (and the legislation underpinning it) may be morally strong, it also faces many structural challenges. In contrast, the mining houses may exhibit signs of moral weakness but at the same time have substantial funds and strong legal teams to help them shirk their responsibilities toward South Africa’s people and environment.


Conclusions and Critical Observations

Despite the challenges mentioned above, it is important to realize the significance and importance of South Africa’s new water legislation. The policy development process itself proved to be very successful as a large number of stakeholders, legal practitioners, environmental scientists, and politicians agreed on a set of world-class, highly progressive principles to accommodate environmental protection and socioeconomic development priorities.60

Given the context in which the policy now needs to be implemented, which is defined by the transitional state in which South Africa finds itself, difficulties and delays can be expected. The policy differs radically from the apartheid legislation that preceded it and is expected to trigger profound changes in the way in which all South Africans will benefit from access to water within environmental limits.

The CMAs, as mentioned earlier, form an integral part of what the National Water Act foresees as the future structures for water management in South Africa. However, a number of challenges will need to be resolved if these structures are to become effective instruments of environmental justice.
New tools will need to be developed to facilitate the implementation of the National Water Act. A priority in this regard are mechanisms that assist decisionmakers in understanding the social and economic value of water for communities that need to have access to it. Appropriate communication tools are also needed to inform local communities about what a CMA is, how it will function, and how local communities can get involved when it comes to making decisions about water management.61 Also important is the need to build policy implementation structures on the basis of what already exists. Poor rural communities have their own water allocation and tenure systems as well as existing community organizations and decisionmaking mechanisms in place. The new system should therefore take this into account and try to understand and strengthen existing practices where appropriate. It is also crucial that the catchment management strategies that are to be developed by the CMAs adopt a pro-poor approach to ensure that the interests of the disadvantaged are taken into account in all decisionmaking processes in the watershed area.62

Successfully functioning CMAs imply the need for good governance. This is not limited to the government exercising its constitutional duties—in other words, governing—but also includes the process of informed decisionmaking that enables tradeoffs to be made between competing users of a given resource so as to mitigate conflict, enhance equity, ensure sustainability, and hold officials accountable.63 The process therefore also involves actors outside government, such as civil society and scientific organizations, and is characterized by participatory behavior, transparency, and accountability. With good governance, an effective response is possible to the needs of the most vulnerable sectors of society, specifically when it comes to water resource allocation.64

Despite the many challenges and critiques that it faces, it appears that the South African government is doing the right thing. Since 1994, 10 million more people have received access to safe water with 86 percent of the population’s basic needs now satisfied.65 Progress in providing people with sanitation has been less impressive; nonetheless, approximately 5 million more South Africans now benefit from better sanitation compared to 1994.66 These figures indicate that DWAF has made progress on a national level in beginning to realize one of the National Water Act’s main aims: to redress the legacies of the country’s apartheid past. While a lot still has to be done, it may be useful for South Africans involved in the water sector to every now and then stop and look back at what they’ve already achieved—arguably enough to inspire them for the journey that still lies ahead.

A final point that can be made is that the evolution of South Africa’s water policy reflects a shift in mindset toward sustainable resource utilization. Whereas water used to be managed and governed from a strong demand-side perspective and was employed as a strong political tool in engineering the South African socioeconomic landscape, the current policy is underpinned by a strong sense of futurity as well as the need to balance both human and ecological needs. In many ways this shift in water policy mimics the shift in thinking in certain progressive research circles: from one which focuses on the physical laws of nature and the principles that drive society and what we are capable of doing through technological intervention, toward one which is driven by a strong set of values and the question of “what ought we do?”67 This shift is well-articulated in descriptions of the emerging sustainability science research field, which seeks to overcome disciplinary myopia by focussing on social-ecological systems as interconnected, complex functioning wholes.68

Nikki Funke is a researcher at the Council for Scientific and Industrial Research (CSIR) in South Africa where she is a member of the Water Resource Governance Systems Research Group. She can be reached via e-mail at nfunke@csir.co.za.

Karen Nortje is a researcher and anthropologist at CSIR where she is a member of the Water Resource Governance Systems Research Group. She can be reached via e-mail at knortje@csir.co.za.

Kieran Findlater is a visiting scientist at CSIR in the Water Resource Governance Systems Research Group. He can be reached via e-mail at kfindlater@gmail.com.

Mike Burns plays a lead role in fusing the concept of sustainability science into the research activities of CSIR and will shortly be taking up a Harvard Fellowship in this field. He can be reached via e-mail at mburns@csir.co.za.

Anthony Turton is the Research Group Leader of the Water Resource Governance System Research Group at CSIR. He can be reached via e-mail at aturton@csir.co.za.

Alex Weaver is the Research Group Leader of the recently established Sustainability Science research group at CSIR. He can be reached via e-mail at aweaver@csir.co.za.

Hanlie Hattingh is a senior researcher in the Water Competency area at CSIR and is the financial and operational leader of the research group: Water Resource Governance Systems. She can be reached via e-mail at hhattingh@csir.co.za.

The authors wish to thank Marian Patrick, Jude Cobbing, Wilma Strydom, and Ernita van Wyk for providing valuable input regarding the use of images and photos.


NOTES

1.    Department of Water Affairs and Forestry (DWAF), A History of the First Decade of Water Services Delivery in South Africa: 1994–2004 (Pretoria, 2004).
2.    South Africa is one of the 20 most water-deficient countries in the world with an annual rainfall of 19.56 inches (497 millimeters (mm)), much less than the world average of 33.86 inches (860 mm). Rainfall in South Africa is also highly seasonal and very unevenly distributed with 65 percent of the country receiving less than 19.68 inches (500 mm) per year. See P. Ashton and B. Haasbroek, “Water Demand Management and Social Adaptive Capacity: A South African Case Study,” in A. R. Turton and R. Henwood, eds., Hydropolitics in the Developing World: A Southern African Perspective (Pretoria: African Water Issues Research Unit, 2002), 187–204. All indications are that South Africa will reach the limits of its potentially accessible water supplies between 2020 and 2030, a situation that is likely to be aggravated by the effects of climate change. See H. Mackay, “Background: Pressures for Change in the Water Sector,” in D. Reed and M. de Wit, eds., Towards a Just South Africa: The Political Economy of Natural Resource Wealth (Washington, DC: WWF Macroeconomic Programme, 2003): 49–76.
3.    In summary, the purpose of the Water Services Act of 1997 is to provide for the right of access to basic water supply and the right to basic sanitation. In addition, national standards and norms and tariffs for water services have to be set, while water services institutions have to be assisted financially and held accountable for their actions. Acts Online, 2007, Water Services Act, Act 108 of 1997, http://www.acts.co.za/water_serv/index.htm
4.    The purpose of the National Water Act of 1998 is to ensure that South Africa’s water resources are protected, used, developed, conserved, managed, and controlled in ways which take into the following factors: meeting the basic human needs of present and future generations; promoting equitable access to water; redressing the results of past racial and gender discrimination; promoting the efficient, sustainable, and beneficial use of water in the public interest; facilitating social and economic development; providing for growing demand for water use; protecting aquatic and associated ecosystems and their biological diversity; reducing and preventing pollution and degradation of water resources; meeting international obligations; promoting dam safety; and managing floods and droughts. To achieve this goal,  it called for establishing suitable institutions and ensuring that they have appropriate community, racial, and gender representation. Acts Online, 2007, National Water Act, Act 36 of 1998, http://www.acts.co.za/ntl_water/.
5.    The Khoisan, as is the case with many of the other indigenous peoples of South Africa, have lived a history of marginalization and disenfranchisement, mainly as a result of the exclusionary policies of colonialism and, subsequently, apartheid. Today, they are a near-extinct society, as illustrated by the “dead” language of the /xam people, now only used as the motto of the new South African coat of arms. See L. Guelke and R. Shell, “Landscape of Conquest: Frontier Water Alienation and Khoikhoi Strategies of Survival, 1652–1780,” Journal of Southern African Studies 18, no. 4 (1992): 803–24.
6.    Guelke and Shell, ibid., page 805.
7.    C. G. Hall, The Origin and Development of Water Rights in South Africa (Oxford: Oxford University Press, 1939); C. G. Hall and A. P. Burger, Hall on Water Rights in South Africa (Oxford: Oxford University Press, 1957); H. Thompson, Water Law: a Practical Approach to Resource Management and the Provision of Services (Cape Town: Juta & Co Ltd, 2006).
8.    Guelke and Shell, note 5 above, page 811.
9.    Guelke and Shell, note 5 above, page 816.
10.    L. C. Duly, “The Failure of British Land Policy at the Cape, 1812–1821,” Journal of African History 6, no. 3: 357–71.
11.    H. Thompson, note 7 above, page 36.
12.    A. Turton, et al., “Gold, Scorched Earth and Water: the Hydropolitics of Johannesburg,” International Journal of Water Resources Development 22, no. 2 (2006): 313–35.
13.    A. D. Lewis, Water Law: Its Development in the Union of South Africa (Cape Town and Johannesburg: Juta & Co. Ltd, 1934).
14.    Union of South Africa, Report of the Director of Irrigation for the Period 1st April, 1928, to 31st March, 1929, Doc. No. U.G. No. 9-’30 (Pretoria, 1930).
15.    T. van Rensburg, Camp Diary of Henrietta E. C. Armstrong: Experiences of a Boer Nurse in the Irene Concentration Camp 6 April to 11 October 1901 (Pretoria: Human Sciences Research Council, 1980).
16.    Republic of South Africa (RSA), Report on the Supplementary Drainage Works for the Riet River Government Water Scheme, Report No. W.P. J-’77 (Pretoria, 1977).
17.    A. R. Turton, R. Meissner, P. M. Mampane, and O. Seremo, A Hydropolitical History of South Africa’s International River Basins, Water Research Commission Report No. 1220/1/04 (Pretoria: Water Research Commission, 2004).
18.    Thompson, note 7 above, 58–60.
19.    The NP government’s policy of discouraging migration from rural to urban areas could also have played a part here, as this required the provision of jobs to Black people living in rural areas. See Mackay, note 2 above, page 50.
20.    The Natives’ Land Act (Act No. 27 of 1913) institutionalized exclusive White ownership of land outside of the demarcated “native” areas, while the Group Areas Act (Act No. 41 of 1950) brought into effect “race zoning” in South Africa. The latter also supported influx controls implemented by the government as the majority of the Black population was “relocated” to resettlement camps in the “independent” homelands. See G. Budlender and J. Latsky, “Unravelling Rights to Land in Rural Race Zones,” in M. de Klerk, ed., A Harvest of Discontent: The Land Question in South Africa (Cape Town: IDASA, 1991).
21.    Republic of South Africa (RSA), Report on the Crocodile River (Eastern Transvaal) Government Waterwork (Sterkspruit Dam), Doc. No. W.P. T-’75 (Pretoria, 1975).
22.    Republic of South Africa (RSA), Report on the Proposed Grootdraai Dam Emergency Augmentation Scheme, Doc. No. W.P. K-’83 (Pretoria, 1983); Republic of South Africa (RSA), Report on the Proposed Extension of the Usutu-Vaal River Government Water Scheme (Doubling of the Pipelines between the Grootdraai Dam and the Trichardtsfontein Balancing Dam), Doc. No. W.P. L-’83 (Pretoria, 1983).
23.    Mackay, note 2 above, page 51.
24.    Mackay, see note 2 above, page 49.
25.    According to the South African Constitution (Section 24 in the Bill of Rights), everyone has the right:

 a) to an environment that is not harmful to their health or well-being; and
b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—
c) prevent pollution and ecological degradation;
(i) promote conservation; and
(ii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

(Republic of South Africa (RSA), Constitution of South Africa, Act 108 of 1996 (Pretoria, 1996).)
26.    B. Schreiner, B. van Koppen and T. Khumbane, “From Bucket to Basin: a New Paradigm for Water Management, Poverty Eradication and Gender Equity,” in A. R. Turton and R. Henwood, eds., Hydropolitics in the Developing World: A Southern African Perspective (Pretoria: African Water Issues Research Unit, 2002): 127–40.
27.    Ibid., page 127.
28.    According to the National Water Act, central government stays responsible for certain functions including policy formulation and regulation, development and maintenance of a national water resource strategy (which sets out the long-term goals and objectives for water management at the national level) and joint management of international catchments. The Minister of Water Affairs and Forestry also retains responsibility for specifying the requirements of the “reserve,” the international water requirements to be set aside for meeting possible future contingencies and the quantity of water needed for strategic uses that are of national importance (see Mackay, note 2 above, page 62).
29.    Department of Water Affairs and Forestry (DWAF), Usutu to Mhlatuze Water Management Area: Internal Strategic Perspective, Report No. P WMA 06/000/00/0304 (Pretoria, 2004).
30.    B. W. Raven, Water Affairs in the Lower Blyde River: the Role of DWAF in Local Water Management, IWMI Working Paper (Wageningen, 2004).
31.    Mackay, note 2 above, page 62.
32.    Ibid., page 64.
33.    According to the National Water Act and the public trust doctrine that it encapsulates, the South African government is ultimately responsible to ensure that “water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner for the benefit of all persons and in accordance with its Constitutional mandate.” The Minister of Water Affairs and Forestry has the executive responsibility to ensure that water is allocated equitably and used beneficially in the public interest. At the same time, environmental values must be promoted. R. Stein, “Water Sector Reforms in Southern Africa: Some Case Studies,” in A. R. Turton and R. Henwood, eds., Hydropolitics in the Developing World: A Southern African Perspective (Pretoria: African Water Issues Research Unit, 2002): 113–23.
34.    Ibid., page 119.
35.    Mackay, note 2 above, page 55–56.
36.    What is problematic is that most people who have ready access to formal water services and those who use large quantities of water in the industrial and agricultural sectors see water as cheap and plentiful. What is necessary is for the country to adopt a culture of water saving by applying demand management policies. Successful water demand management will mean that a policy combining effective education and awareness-raising is needed along with the implementation of economic instruments that will help different sectors self-regulate their water use. Education programs can be seen as long-term interventions which require considerable leadership and commitment from the government, while economic instruments would have to be phased in slowly to counteract the long-standing effects of artificially low water prices in the past without causing significantly negative impacts on the national economy (see Mackay, note 2 above, page 74–75).
37.    South Africa’s National Water Act makes provision for public consultation, with the Minister being obliged to take comments from the public into account in the process of decisionmaking. Access to information is also guaranteed by the act, which means that information that affects the public must be made available, including flood and drought warnings; any risks imposed by the quality of water to life, health, or property; and any other matter that may be necessary to achieve the goals of the National Water Act (section 142). See Stein, note 33 above, page 120.
38.    Ibid., page 119.
39.    Republic of South Africa (RSA), Water Services Act, Act No. 108 of 1997 (Pretoria: Department of Water Affairs and Forestry, 1997),
40.    N. Funke, S. H. H. Oelofse, J. Hattingh, P. J. Ashton and A. R. Turton, “IWRM in Developing Countries: Lessons from the Mhlatuze Catchment in South Africa,” Paper presented at the 7th WaterNet/WARFSA/ GWP-SA Symposium in Lilongwe, Malawi from 1–3 November 2006.
41.    Unfortunately, it is not likely that smaller municipalities, particularly those in remote rural areas, will easily emulate the example set by Durban. The reason for this is that smaller local authorities have much more limited financial resources and simply cannot afford the development and maintenance costs required to sustain free water supplies. Another way of attaching “value” to water is of course by changing people’s behavior and attitudes so that they think carefully about how much water to use in their daily lives and end up wasting less of this precious resource. Here, it is important to mention a project that has managed to successfully reduce annual water consumption by some 16.5 percent in the Hermanus area (Western Cape, South Africa). The Greater Hermanus Water Conservation Program, which consisted of a suite of short- and long-term technical and economic techniques along with an intensive awareness campaign, enhanced responsiveness among all water users, and reduced water consumption to within target levels. During this process, water users accepted both the rationale for this water demand management program and also demonstrated their individual commitment to the process, thereby ensuring the success of the program. See Ashton and Haasbroek, note 2 above, page 194. Such a change in behavior will be necessary throughout the country if South Africa’s water demand levels are to decrease. It would be good for other municipalities to learn from Hermanus in this regard and to start implementing similar programs, as such change is likely to best be effected at the local level.
42.    The sustainable management of natural resources also necessitates tradeoffs to be made between social, economic, and environmental imperatives to find an appropriate balance. The national classification system for water resources that the National Water Act makes provision for has the purpose of classifying water resources according to the degree to which they should be protected or used for development purposes. In terms of this provision, some water resources may be classified as requiring a high level of protection due to their value to society and may consequently receive a higher class and a more conservative “reserve.” Other water resources, on the other hand, may be assigned a lower class and a correspondingly lower “reserve” because they have been earmarked for development purposes. The latter would still be afforded protection but without additional safety factors (see Mackay, note 2 above, pages 59–60). The process of defining management classes for each river system and then providing quantitative estimates of what percentage of each river should be conserved for “reserve” purposes is still continuing. What is important to note is that the success or failure of these approaches depends largely on the effectiveness of individual water resource managers as well as the effective functioning of the catchment management agencies, many of which still have to be established (see Ashton and Haasbroek, note 2 above, page 193).
43.    DWAF, Overview of Water Resources Availability and Utilisation, Report No. P WMA 06/000/00/0203 (Pretoria, 2003).
44.    Stein, note 33 above, page 122.
45.    Stein, note 33 above, page 122.
46.    J. Hattingh, G. Maree, S. Oelofse, A. Turton, and E. van Wyk, “Environmental Governance and Equity in a Democratic South Africa,” paper presented at the AWRA/IWLRI International Conference on Water Law Governance in Dundee, Scotland, 2004.
47.    Funke, Oelofse, J. Hattingh, Ashton and Turton, note 40 above, page 13.
48.    S. Pollard and D. du Toit, “Achieving Integrated Water Resource Management: The Mismatch in Boundaries Between Water Resources Management and Water Supply,” International Workshop on African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa in Johannesburg, South Africa, 26–28 January 2005.
49.    Ibid., page 9
50.    Ibid., page 9.
51.    Hattingh, Maree, Oelofse, Turton, and van Wyk, note 46 above, page 6.
52.    P. J. Ashton, “The Role of Good Governance in Sustainable Development: Implications for Integrated Water Resources Management in Southern Africa,” in A. R. Turton et al., eds., Governance as a Trialogue—Government-Society-Science in Transition (Berlin: Springer-Verlag, 2007): 80–100.
53.    Hattingh, Maree, Oelofse, Turton, and van Wyk, note 46 above, page 5.
54.    A promising exception to this overall tendency was the Convention for a Democratic South Africa (CODESA), which managed to mobilize substantial skills of negotiation between various parties with opposing views in the run-up to the first democratic elections in 1994. This initiative therefore demonstrated how South Africans from a range of diverse backgrounds are able to cooperate under a set of specific, and in this case crucially important, conditions. See R. Spitz and M. Chaskalson, The Politics of Transition: a Hidden History of South Africa’s Negotiated Settlement (Johannesburg: Witwatersrand University Press, 2000).
55.    Hattingh, Maree, Oelofse, Turton, and van Wyk, note 46 above, page 6.
56.    R. Adler, N. Funke, K. Findlater, and A. R. Turton, The Changing Relationship between the Government and the Mining Industry in South Africa: A Critical Assessment of the Far West Rand Dolomitic Water Association and the State Coordinating Technical Committee (Pretoria: Council for Scientific and Industrial Research (CSIR), 2006).
57.    “Research Seeks Answers for Century-Old Problem”, The Water Wheel 4, no. 2 (March/April 2005): 16–21.
58.    Adler, Funke, Findlater, and Turton, note 56 above, page 4.
59.    Adler, Funke, Findlater, and Turton, note 56 above. A case in point is the Far West Rand of South Africa where there is rising concern over heavy metal and radionuclide contamination in the Wonderfontein Spruit Catchment. The current government has commissioned the first public domain studies on this topic, which show heavy metal contamination up to 40 times the internationally accepted norm. H. Coetzee, F. Winde and P. W. Wade, An Assessment of Sources, Pathways, Mechanisms and Risks of Current and Potential Future Pollution of Water and Sediments in Gold-Mining Areas of the Wonderfonteinspruit Catchment, WRC Report No. 1214/1/06 (Pretoria: Water Research Commission, 2006). This poses a significant challenge technically and will test the government’s credibility in the near future. The very fact that the government chose to fund these reports and release them as public domain documents is empirical evidence that it is serious about meeting its Constitutional mandate for historic redress, social and environmental justice, and intergenerational equality. It remains to be seen, however, to which extent it will successfully be able to resolve this potentially explosive situation in practice.
60.    C. de Coning and T. Sherwill, An Assessment of the Water Policy Process in South Africa (1994 to 2003), Water Research Commission Report TT232/04 (Pretoria, 2004).
61.    Due to high levels of illiteracy in rural areas in South Africa, posters and brochures may not be sufficient to communicate messages about local water management. Other forms of communication will have to be developed.
62.    Schreiner et al., note 26 above, page 139.
63.    A. R.Turton, J. Hattingh, M. Claassen, D. J. Roux and P. J. Ashton, “Towards a Model for Ecosystem Governance: An Integrated Water Resource Management Example,” in A.R. Turton et al., eds., Governance as a Trialogue—Government-Society-Science in Transition (Berlin: Springer-Verlag, 2007).
64.    Hattingh, Maree, Oelofse, Turton, and van Wyk, note 46 above, pages 1–3.
65.    United Nations Development Programme (UNDP), Human Development Report 2006. Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York: United Nations Development Programme, 2006).
66.    Ibid., page 63.
67.    M. A. Max-Neef, “Foundations of Transdisciplinarity,” Ecological Economics 53, (2005): 5–16.
68.   R. W. Kates et al., “Sustainability Science,” Science, 27 April 2001, 641–42.; M. Burns, M. Audouin, and A. Weaver, “Advancing Sustainability Science in South Africa,” South African Journal of Science 102, no. 9/10 (September/October 2006): 379–84.

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