The main purpose of the National Water Act 36 of 1998 is to provide for fundamental reform of the law relating to water resources in South Africa. Section 3(1) of the National Water Act 36 of 1998 (NWA) stipulates that the national government, as the public trustee of the nation's water resources, must ensure the protection, use, development, conservation and management of water. Water must also be controlled in a sustainable and fair manner, to the advantage of all persons and in accordance with the national government`s constitutional mandate. Subsection (2) stipulates that the Minister is ultimately responsible to ensure that water is allocated and used in a fair manner, for the benefit of the public interest, while promoting environmental values. Subsection (3) further stipulates that the national government also has to regulate the use, flow and control of all water in the Republic. These provisions of the NWA gave birth to the concept of public trusteeship in the South African law. The NWA provides for a number of different water us rights; from water use rights for domestic purposes to water use rights for the purpose of agriculture. Considering the extent of the study of all the water use rights that exist within the provisions of the NWA, this research will focus on licensed water use rights intended for agriculture. In this study it will be determined whether these licensed water use rights form part of a person's estate. Furthermore, it will also be determined whether these rights are transferable and whether a value can be attached to these rights in the estate of a person. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2010.

The main purpose of the National Water Act 36 of 1998 is to provide for fundamental reform of the law relating to water resources in South Africa. Section 3(1) of the National Water Act 36 of 1998 (NWA) stipulates that the national government, as the public trustee of the nation's water resources, must ensure the protection, use, development, conservation and management of water. Water must also be controlled in a sustainable and fair manner, to the advantage of all persons and in accordance with the national government`s constitutional mandate. Subsection (2) stipulates that the Minister is ultimately responsible to ensure that water is allocated and used in a fair manner, for the benefit of the public interest, while promoting environmental values. Subsection (3) further stipulates that the national government also has to regulate the use, flow and control of all water in the Republic. These provisions of the NWA gave birth to the concept of public trusteeship in the South African law. The NWA provides for a number of different water us rights; from water use rights for domestic purposes to water use rights for the purpose of agriculture. Considering the extent of the study of all the water use rights that exist within the provisions of the NWA, this research will focus on licensed water use rights intended for agriculture. In this study it will be determined whether these licensed water use rights form part of a person's estate. Furthermore, it will also be determined whether these rights are transferable and whether a value can be attached to these rights in the estate of a person. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2010.

The Water Resources Management Act 24 of 2004 will change the water regime in Namibia dramatically. Section 4 of the Water Resources Management Act provides for this change by excluding private ownership of water from the new water law dispensation. This study focused on section 4 of the Water Resources Management Act and the implication that this section will have on property rights in the Namibia. The dissertation firstly outlines the historical development of ownership of water in Namibia. It is indicated that private ownership of water was an established principle under Roman-Dutch law. A further examination of Roman-Dutch law reveals that surface water could be divided into private and public water. Public water belonged to the whole nation, while ownership of private rivers was vested in the land owner. Under South West Africa’s water legislation, the Irrigation and Water Conservation Act 8 of 1912 and the Water Act 54 of 1956 maintained the distinction between public and private water. However, the Water Act of 1956 expanded the definitions of both public and private water, and acknowledged that the land owner where the water found its source or flowed over, could exercise the exclusive use rights of such water. The Water Resources Management Act has been approved and published in the Government Gazette. However, it has not yet come into force as a date for commencement of the Act, as prescribed by section 138(1)(b), has not yet been determined by the Minister. Once the Act is in force, the Water Act will be repealed as a whole. Section 4 of the Water Resources Management Act will abolish the private ownership of water in Namibia. This is clearly in violation of article 16 of the Namibian Constitution of 1990, which provides for private ownership of water when read with article 100. Therefore, the research concludes that the Water Resources Management Act will dramatically affect property rights in Namibia. Under the Water Resources Management Act there will be no private ownership of water, and the affected person will have no recourse under the Act to claim compensation. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2014

The Water Resources Management Act 24 of 2004 will change the water regime in Namibia dramatically. Section 4 of the Water Resources Management Act provides for this change by excluding private ownership of water from the new water law dispensation. This study focused on section 4 of the Water Resources Management Act and the implication that this section will have on property rights in the Namibia. The dissertation firstly outlines the historical development of ownership of water in Namibia. It is indicated that private ownership of water was an established principle under Roman-Dutch law. A further examination of Roman-Dutch law reveals that surface water could be divided into private and public water. Public water belonged to the whole nation, while ownership of private rivers was vested in the land owner. Under South West Africa’s water legislation, the Irrigation and Water Conservation Act 8 of 1912 and the Water Act 54 of 1956 maintained the distinction between public and private water. However, the Water Act of 1956 expanded the definitions of both public and private water, and acknowledged that the land owner where the water found its source or flowed over, could exercise the exclusive use rights of such water. The Water Resources Management Act has been approved and published in the Government Gazette. However, it has not yet come into force as a date for commencement of the Act, as prescribed by section 138(1)(b), has not yet been determined by the Minister. Once the Act is in force, the Water Act will be repealed as a whole. Section 4 of the Water Resources Management Act will abolish the private ownership of water in Namibia. This is clearly in violation of article 16 of the Namibian Constitution of 1990, which provides for private ownership of water when read with article 100. Therefore, the research concludes that the Water Resources Management Act will dramatically affect property rights in Namibia. Under the Water Resources Management Act there will be no private ownership of water, and the affected person will have no recourse under the Act to claim compensation. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2014

The concept "beneficial use" plays a pivotal role in South African water law reform. It forms the foundation of the mechanism to make water use rights available for the reform of the allocation of water use entitlements. The mechanism involves that water use rights that were unexercised in the two years before the promulgation of the National Water Act 36 of 1998 are not defined as existing lawful water uses. Where the concept "beneficial use" is utilised to cancel unexercised water use rights, it can cause potential hardship. Some people whose rights have been cancelled believe that they should be able to rely on the property clause in section 25 of the Constitution of 1996 to either have the legislation declared unconstitutional or to demand compensation. Section 25 of the Constitution of 1996 prohibits the arbitrary deprivation of property and states that property may only be expropriated for a public purpose or in the public interest, subject to compensation. Section 25(4) states, however, that the public interest includes the nation's commitment to land reform and to reforms to bring about equitable access to all South Africa's natural resources. It is clear from this that reforms to bring about access to water are allowed by the property clause. One of the main questions discussed in this thesis was whether section 32 of the National Water Act 36 of 1998 that made more water available for distribution for reform purposes by cancelling unexercised water user rights, leads to an arbitrary deprivation or an expropriation of property. It should be noted that section 32 of the National Water Act did not constitute an arbitrary deprivation of property, as sufficient reason exists for water law reform. A possible constitutional challenge based on the lack of due process of law because of the retrospective operation of the section may possibly be averted because of the existence of section 33 of the National Water Act. Section 33 of the Act mitigates hardship by allowing unexercised water uses to be declared existing lawful water uses in certain circumstances where a good reason for the non–exercise of the water use right existed. Even in cases where section 33 does not prevent section 32 from being regarded as an arbitrary deprivation of property because there still was not a proper procedure, the government will probably be able to show that the limitation in section 32 is, in terms of section 36(1) of the Constitution of 1996, reasonable and justifiable in an open and democratic society. Despite the fact that section 25(1) prohibits arbitrary deprivations, it does not prohibit the government from regulating competing rights to use water even though some people may be negatively affected by the regulation. Because the Minister merely acts as public trustee of the nation's water resources on behalf of the national government in terms section 3(1) of the National Water Act, it cannot be claimed that the government acquired the cancelled water use rights. A claim that compensation should be paid for an expropriation of property will therefore not succeed. Compensation is only payable in terms of section 22(6) and section 22(7) of the National Water Act 36 of 1998 for a loss of existing water entitlements, such as existing lawful water uses or existing licences. A court should thus consider interpreting section 25 by providing for compensation where an individual was unfairly burdened and was therefore denied the protection of the equality clause in section 9 of the Constitution when his unexercised water use rights were cancelled by section 32. The concept "beneficial use" currently restricts the content of the water use entitlement existing in terms of section 4 of the National Water Act 36 of 1998. The loss of the entitlement when inter alia a licence for an existing lawful water use is refused, is not protected by the payment of compensation when water is used in an unfair or disproportionate manner, because such utilisation would not be regarded to be beneficial use. It became apparent that in terms of the current water law dispensation in South Africa, the possibility of compensation for an amendment of a water use licence and the refusal of a licence for an existing lawful water use implies that a water use entitlement is a right in property. The fact that section 22(7) of the National Water Act states that the amount of the compensation must be determined in accordance with section 25(3) of the Constitution implies that the legislature also recognises that a water use entitlement is constitutional property. Section 22(7) of the National Water Act underlines the basic premises of the National Water Act by subjecting the amount of the compensation that is payable to the same limitations that restrict the entitlement to use the water. The stipulations of section 22(7) draw the attention to the fact that the exercise of both existing lawful water uses and water use licences as rights in property is subject to basic principles of the National Water Act such as the Reserve and the concepts "public trusteeship" and "beneficial use" of the water resources. The fact that compensation is only payable when there has been severe prejudice to the economic viability of an undertaking implies that water use entitlements have to be exercised at the time of the application for the compensation to be payable. The concept "beneficial use" – in the sense that a water use must not be wasteful or polluting and in the sense that only water use entitlements that are being exercised are protected – thus restricts the water use entitlement as a property right. During the research, American and Australian water law reform and their interpretation of their property clauses were compared to water law reform in South Africa and the South African property clause. Furthermore, Australian policy to encourage more beneficial water use by the trade in water entitlements or allocations, was also discussed. South Africans will likely in future be encouraged to trade in water use entitlements or allocations. The objective with allowing the trade in water use entitlements or allocations is to encourage people to rather use water for uses with a high value instead of uses with a lower value. In this way the concept "beneficial use" may be broadened to include water allocation or entitlement trading. However, it was argued that a disproportionate impact on third parties would mean that water allocation or entitlement trading would in some cases not be regarded as beneficial use anymore. / Thesis (LL.D.)--North-West University, Potchefstroom Campus, 2011.

The concept "beneficial use" plays a pivotal role in South African water law reform. It forms the foundation of the mechanism to make water use rights available for the reform of the allocation of water use entitlements. The mechanism involves that water use rights that were unexercised in the two years before the promulgation of the National Water Act 36 of 1998 are not defined as existing lawful water uses. Where the concept "beneficial use" is utilised to cancel unexercised water use rights, it can cause potential hardship. Some people whose rights have been cancelled believe that they should be able to rely on the property clause in section 25 of the Constitution of 1996 to either have the legislation declared unconstitutional or to demand compensation. Section 25 of the Constitution of 1996 prohibits the arbitrary deprivation of property and states that property may only be expropriated for a public purpose or in the public interest, subject to compensation. Section 25(4) states, however, that the public interest includes the nation's commitment to land reform and to reforms to bring about equitable access to all South Africa's natural resources. It is clear from this that reforms to bring about access to water are allowed by the property clause. One of the main questions discussed in this thesis was whether section 32 of the National Water Act 36 of 1998 that made more water available for distribution for reform purposes by cancelling unexercised water user rights, leads to an arbitrary deprivation or an expropriation of property. It should be noted that section 32 of the National Water Act did not constitute an arbitrary deprivation of property, as sufficient reason exists for water law reform. A possible constitutional challenge based on the lack of due process of law because of the retrospective operation of the section may possibly be averted because of the existence of section 33 of the National Water Act. Section 33 of the Act mitigates hardship by allowing unexercised water uses to be declared existing lawful water uses in certain circumstances where a good reason for the non–exercise of the water use right existed. Even in cases where section 33 does not prevent section 32 from being regarded as an arbitrary deprivation of property because there still was not a proper procedure, the government will probably be able to show that the limitation in section 32 is, in terms of section 36(1) of the Constitution of 1996, reasonable and justifiable in an open and democratic society. Despite the fact that section 25(1) prohibits arbitrary deprivations, it does not prohibit the government from regulating competing rights to use water even though some people may be negatively affected by the regulation. Because the Minister merely acts as public trustee of the nation's water resources on behalf of the national government in terms section 3(1) of the National Water Act, it cannot be claimed that the government acquired the cancelled water use rights. A claim that compensation should be paid for an expropriation of property will therefore not succeed. Compensation is only payable in terms of section 22(6) and section 22(7) of the National Water Act 36 of 1998 for a loss of existing water entitlements, such as existing lawful water uses or existing licences. A court should thus consider interpreting section 25 by providing for compensation where an individual was unfairly burdened and was therefore denied the protection of the equality clause in section 9 of the Constitution when his unexercised water use rights were cancelled by section 32. The concept "beneficial use" currently restricts the content of the water use entitlement existing in terms of section 4 of the National Water Act 36 of 1998. The loss of the entitlement when inter alia a licence for an existing lawful water use is refused, is not protected by the payment of compensation when water is used in an unfair or disproportionate manner, because such utilisation would not be regarded to be beneficial use. It became apparent that in terms of the current water law dispensation in South Africa, the possibility of compensation for an amendment of a water use licence and the refusal of a licence for an existing lawful water use implies that a water use entitlement is a right in property. The fact that section 22(7) of the National Water Act states that the amount of the compensation must be determined in accordance with section 25(3) of the Constitution implies that the legislature also recognises that a water use entitlement is constitutional property. Section 22(7) of the National Water Act underlines the basic premises of the National Water Act by subjecting the amount of the compensation that is payable to the same limitations that restrict the entitlement to use the water. The stipulations of section 22(7) draw the attention to the fact that the exercise of both existing lawful water uses and water use licences as rights in property is subject to basic principles of the National Water Act such as the Reserve and the concepts "public trusteeship" and "beneficial use" of the water resources. The fact that compensation is only payable when there has been severe prejudice to the economic viability of an undertaking implies that water use entitlements have to be exercised at the time of the application for the compensation to be payable. The concept "beneficial use" – in the sense that a water use must not be wasteful or polluting and in the sense that only water use entitlements that are being exercised are protected – thus restricts the water use entitlement as a property right. During the research, American and Australian water law reform and their interpretation of their property clauses were compared to water law reform in South Africa and the South African property clause. Furthermore, Australian policy to encourage more beneficial water use by the trade in water entitlements or allocations, was also discussed. South Africans will likely in future be encouraged to trade in water use entitlements or allocations. The objective with allowing the trade in water use entitlements or allocations is to encourage people to rather use water for uses with a high value instead of uses with a lower value. In this way the concept "beneficial use" may be broadened to include water allocation or entitlement trading. However, it was argued that a disproportionate impact on third parties would mean that water allocation or entitlement trading would in some cases not be regarded as beneficial use anymore. / Thesis (LL.D.)--North-West University, Potchefstroom Campus, 2011.