Between Principles & Power: Water Law Principles & the Governance of Water in Post-Apartheid South Africa (original) (raw)
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Daedalus, 2021
Debates over the management and allocation of water in the postcolonial era, and in post-apartheid South Africa in particular, reveal that struggles over water resources in Southern Africa occur within three broad frames: the institutional, the hydrological, and the ideological. Each of these realms reflects tensions in the relationship between power and principle that continue to mark the governance of water. Each perspective offers a way to understand the use and the limits of law in the management of a country's water resources. The existence of explicit principles, whether as policy guidelines, constitutional rights, or in the language of regional and international agreements, provides two important resources for those who struggle for access to water. First, a vision of a more just allocation of this fundamental resource and, second, an articulation of common benchmarks to which states and governments might be held to account.
Physics and Chemistry of the Earth, Parts A/B/C, 2017
Governance of the water sector in South Africa has reflected the political changes taking place in society. For instance, due to apartheid policies of segregation, inequality of access to water resources marks South Africa's history in a very profound way and redistribution of rights to water to redress the results of past discrimination became an explicit purpose of the post-apartheid water governance policy and legislative regime. In this paper, we articulate the history and major departure points evident in post-apartheid South African national water policy and law. This includes documenting and reflecting on most of the available information that shows how the new water policy and law were developed. Findings from the study show that the key players active in the water law review process deliberately took into account the political goals and dynamics of power asymmetry within which the law was being articulated. Therefore, the water law as it stands today and in the past must be understood within the context of the socioeconomic and political landscape that has prevailed in South Africa at different historical junctures. We contend that a detailed examination and articulation of the history and major departure points evident in post-apartheid South African national water policy and law enables practitioners and scholars to better understand the main motivations behind the water sector reforms and the then prevailing thinking behind the policy and legislation eventually promulgated. The present water law must be understood in the context of these reforms and the objectives they sought to achieve.
Review of European Community & International Environmental Law, 2010
This article questions the meaning of a domestic constitutional water right for the State's provision of water suitable for domestic use and human consumption. Following a brief historical introduction to the constitutional right of access to sufficient water in Section 27 of the Constitution of the Republic of South Africa (1996), the scope and meaning of this right as it is currently understood by the courts and others are explored. Attention is also paid to the relationship between Section 27 and other substantive constitutional rights such as the environmental right (Section 24), the right to life (Section 11), the right to human dignity (Section 10) and the right to equality (Section 9). With brief reference to some of the most imminent water provision challenges that South Africa currently faces, some views are raised concerning the State's constitutional duty to take affirmative action with respect to different interests that people hold in water. It is concluded that the body of constitutional rights in South Africa compels the State to take positive action to ensure access to enough water of suitable quality in a manner that is fair and just and that is aimed at sustainability.
Water Resources Management, 2007
Water users wish to achieve the highest benefits from water resources. Rules limit the manner in which water users may utilise the water resources occurring within their constituencies or territories. However an asymmetrical situation exists whereby downstream users may not affect upstream users but upstream users do cause downstream impacts. Because of this asymmetry the equitable sharing of water resources between upstream and downstream users will always imply that upstream users have to forego some potential water benefits. The general question that this paper addresses is: which institutional arrangements can be devised to (re-)establish an equilibrium between up- and downstream entities within a catchment area or river basin? The paper addresses this question by first focusing on some local and national water allocation arrangements. After briefly reviewing the different management regimes, customary and colonial, that co-evolved in Southern Africa, it assesses the water management principles that are currently being espoused. The focus then turns to the principles in international water law that deal with the allocation of water in transboundary river basins. It is concluded that it often proves difficult to reach agreement over how to share the scarce resource. The paper then discusses the current trend to look beyond water and beyond the river basin when seeking peaceful means to share a common water resource. The concept of “hydrosolidarity” emerges as a normative value that may help to recreate a balance between the various (asymmetrical) interests that exist within a river basin. The paper concludes that water resources can only be governed wisely is there is capacity to understand and monitor the water fluxes within a river basin. If such capacity is wanting, priority should be given to strengthen it.
South Africa has a complex water governance landscape, both with considerable successes, and ongoing challenges, in achieving sustainable, adequate and equitable water access and governance. With a specific focus on Cape Town, this policy brief provides background on the history and institutions of importance for water governance, and also identifies key legislation enacted since 1994. The report includes a diagram of different levels of water authorities and mandates, offering an 'institutional map' of the urban water sector of Cape Town (dated 2015). Water supply and distribution schemes in South Africa were historically created to serve predominantly white populations during colonial and apartheid eras. Capital investments in pipes, dams and other water-related infrastructure were differentially affected during apartheid in different areas, with homelands, townships and informal settlements receiving much less funding and generally lower quality of water services (Goldin 2010). This resulted in highly differentiated access to water services in South Africa, by race and income, as well as a highly fragmented water management system (Herrfahrdt-Pähle 2010) as well as undemocratic participatory engagement—challenges that all persist today. One historical legacy exacerbating this institutional fragmentation was the shift from 6 municipalities into one Unicity of Cape Town in 2000, which created further challenges for equitable and unified service delivery (Smith & Hanson 2003). With the adoption of the first democratic constitution of South Africa (1996), vast political reforms were undertaken, affecting all dimensions of governance across the country. The new democratic government and constitution established national institutional mandates for the provision and governance of water resources, as well as water services (Republic of South Africa (RSA) 1996). In terms of water services, the South African constitution (1996) includes the guarantee for water (and sanitation), stating that " everyone has the right to access sufficient food and water " (Section
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The National Water Act (1998) of South Africa provides strong tools to redress inequities inherited from the past. However, a decade after the introduction of the Act, access to water is still skewed along racial lines. This paper analyses the various ways in which the Water Act is contested, based on empirical data detailing the interactions between smallholder farmers and commercial farmers in a case-study catchment in KwaZulu-Natal Province. The paper argues that the legacy of the apartheid era still dominates the current political and economical reality and shows how the redistribution of water resources is contested by the elite. The paper identifies several issues that prevent the smallholder farmers from claiming their rights, including the institutional arrangements in former homelands, the 'community approach' of Government and NGOs, the disconnect between land and water reform processes, and historically-entrenched forms of behaviour of the various actors. The paper concludes that the difficulties encountered in the water reform process are illustrative for what is happening in the society at large and raises the question as to what price is being paid to maintain the current status quo in the division of wealth?
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In its first part this paper discusses the rationale for the recognition of traditional water management structures in the light of the realities of water management and supply in South Africa’s rural areas. Based on the findings of two case studies it is argued that customary arrangements form part of the social adaptive capacity of communities and can aid integrated water resource management. In the second part, the relationship between traditional water governance structures and South Africa’s new National Water Act is explored and the case is made that South Africa’s law and policy framework supports the recognition of traditional water governance structures as part of the overall water management strategy. Based on these arguments, in its final part, the paper debates the role for traditional leadership in water management in the cross-over zone between traditional rural customs and the new democratic governance and service delivery structures in South Africa. Key words: tradit...
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