South Africa's water law dispensation has changed dramatically with the promulgation of the National Water Act 36 of 1998. The previous distinction between public and private water has been abolished and the Minister of Water Affairs and Forestry has been appointed to act as trustee of the nation's water resources. Through the working 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. The key issue, which is investigated in this article, is whether the state, through the provisions of the National Water Act, expropriated vested rights in property or whether such infringement merely constituted a deprivation. 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. Although no definition of property has been formulated in the Constitution, it appears from applicable authority, that this development in the law of property is supported by the Constitution and that the protection granted by the property clause will stretch as far as the inclusion of rights in property. It is for this reason that the existing water use rights, which were available to certain individuals in terms of the 1956 Water Act, can be classified as property. Section 25(1) authorises the infringement of private property in certain defined instances. Despite the many academic works which define the difference between deprivation and expropriation as described in section 25(2), the Constitutional Court clarified this matter in First National Bank of SA Ltd Va Wesbank v Commissioner for the South African Revenue Services 2002 7 BCLR 702 (CC). Expropriation is described as a sub-category of deprivation. Section 25(1) must thus be used as the starting point in all cases in which an investigation is conducted into the constitutional validity of an infringement of property. Only when it has been established that the requirements of section 25(1) have been complied with, is the question of whether deprivation constitutes expropriation, asked. The requirements for deprivation, expropriation and inverse condemnation are discussed with reference to applicable case law. After the aim of the National Water Act was weighed up against the disadvantages which individuals suffer through the infringement of their vested rights, the conclusion was reached that the nation's need for sustainable water resources carries more weight than the individual's exclusive right of use of water. A constitutionally valid deprivation has thus occurred. Due to the fact that the state did not appropriate any rights in this process, the conclusion was reached that this provision does not amount to an expropriation. It does however appear that the provisions of the National Water Act can give rise to inverse condemnation or constructive expropriation in specific circumstances. / Thesis (LL.M. (Estate Law))--Potchefstroom University for Christian Higher Education, 2003.

South Africa's water law dispensation has changed dramatically with the promulgation of the National Water Act 36 of 1998. The previous distinction between public and private water has been abolished and the Minister of Water Affairs and Forestry has been appointed to act as trustee of the nation's water resources. Through the working 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. The key issue, which is investigated in this article, is whether the state, through the provisions of the National Water Act, expropriated vested rights in property or whether such infringement merely constituted a deprivation. 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. Although no definition of property has been formulated in the Constitution, it appears from applicable authority, that this development in the law of property is supported by the Constitution and that the protection granted by the property clause will stretch as far as the inclusion of rights in property. It is for this reason that the existing water use rights, which were available to certain individuals in terms of the 1956 Water Act, can be classified as property. Section 25(1) authorises the infringement of private property in certain defined instances. Despite the many academic works which define the difference between deprivation and expropriation as described in section 25(2), the Constitutional Court clarified this matter in First National Bank of SA Ltd Va Wesbank v Commissioner for the South African Revenue Services 2002 7 BCLR 702 (CC). Expropriation is described as a sub-category of deprivation. Section 25(1) must thus be used as the starting point in all cases in which an investigation is conducted into the constitutional validity of an infringement of property. Only when it has been established that the requirements of section 25(1) have been complied with, is the question of whether deprivation constitutes expropriation, asked. The requirements for deprivation, expropriation and inverse condemnation are discussed with reference to applicable case law. After the aim of the National Water Act was weighed up against the disadvantages which individuals suffer through the infringement of their vested rights, the conclusion was reached that the nation's need for sustainable water resources carries more weight than the individual's exclusive right of use of water. A constitutionally valid deprivation has thus occurred. Due to the fact that the state did not appropriate any rights in this process, the conclusion was reached that this provision does not amount to an expropriation. It does however appear that the provisions of the National Water Act can give rise to inverse condemnation or constructive expropriation in specific circumstances. / Thesis (LL.M. (Estate Law))--Potchefstroom University for Christian Higher Education, 2003.

Magister Philosophiae (Integrated Water Resource Management) - MPhl(IWM) / The South African National Water Act attracted attention of the international water community as one of the most reformist pieces of water legislation in the world, and a major step forward in the transformation of the concept of integrated water resources management (IWRM) into legislation. However, 20 years later after the National Water Act was promulgated, implementation of the same act has been partially successful. In many aspects, the, implementation has been weak. The argument is that the water law enforcement is not been implemented to demonstrate the effectiveness of regulations for the protection of water resources. / 2022

Masters of Science / The aim of this investigation was to provide a framework or strategy for prioritising and implementing regional groundwater monitoring in the OlifantsDoom Water Management (WMA) area. Regional groundwater monitoring is generally seen as the responsibility of the Department of Water Affairs (DW AF), but there is a huge gap between the resources that DW AF has to do monitoring, and the expectations - often conflicting - from both outside and within DW AF as to what monitoring it should be doing.

Fsculty of Science School of Animal,Plant And Enviromental Sciences Msc 9201098j tsherwill@yahoo.com / South Africa’s new water policy and law have introduced the requirement for public participation in all aspects of resource management and decision-making. This policy change is in recognition of the potential benefits of participation in generating more informed, acceptable, equitable and sustainable management of the nation’s water resources. However the new water law does not prescribe the form this participation should take, or offer criteria for evaluating the success of participatory processes. The term ‘public participation’, in its contemporary usage worldwide, is poorly or broadly defined and may thus encompass a range of processes, which differ in the roles and influence afforded to their stakeholder participants, and in their ability to deliver desired outcomes and benefits to government or the public. This study aimed to investigate the influence of this procedural variation on public and stakeholder participation in the implementation of the National Water Act (Act no. 36 of 1998) in South Africa, and thereby recommend a preferred approach to conducting and facilitating these processes in the future. Use was made of a qualitative and primarily inductive research approach. This was designed to gather perspectives of the various role-players (stakeholders, specialists and government) for a desired process and outcome of participation, and to link process and outcome by means of two case studies of the current implementation of participatory processes for water resource management decision-making. Both case studies illustrated the over-riding negative influence of a product-oriented and ‘specialist-centred’ approach to participation, focused on the development of specific statutory products or decisions required by the National Water Act. This approach in turn is being driven by the current fragmentation of participation around these different products and stages of the overall resource management process. A recommended alternative is a more process-oriented, ‘stakeholder-centred’ approach to participatory events, within an integrative, ongoing participatory process. This must be based on mutual learning by all role-players, and an emphasis on inter-sectoral interaction and relationships. A key constraint identified to the achievement of more integrative participatory processes that offer influence to, and generate ownership by, stakeholder participants, is the lack of clarity within government and the South African water sector as to the intent of participation within the new water policy, and thus the process by which this participation should take place. In particular, the role of stakeholders, and how much influence or power they should be afforded in decision-making processes, is subject to individual interpretation. The recommendation from this research is that, given the ideals of equity, sustainability and citizen empowerment aspired to by the Constitution and the new water policy, government should strive to fully engage stakeholders in processes that both offer influence and inspire action. Ideally, linkages should be created to extend this influence to the broader political process.

Magister Philosophiae - MPhil / There is overwhelming evidence that South Africa’s rivers are heavily polluted, a situation which is attributable to a large degree to poorly functioning and inefficiently managed waste water treatment works in municipalities. The evidence suggests, furthermore, that municipalities often do not comply with their constitutional obligation to provide water services in a sustainable manner and promote a safe and healthy environment. Such non-compliance infringes on people's constitutionally guaranteed rights to a pollution-free environment and equitable access to sufficient and safe water. The problem is that municipalities are not properly managing the waste water treatment works (WWTWs) and not regulating industrial discharge into these works in accordance with the prescribed national norms and standards. The National Water Act 36 of 1998 and other related Acts provide for legal and informal enforcement mechanisms that criminalise acts of pollution. However, none of them have been effective in enforcing municipal compliance with the national norms and standards of effluent management. There are two main reasons for this. First, the constitutional structure does not allow the Minister responsible for water management to exercise direct supervision of the municipalities despite the functional relationship the Department of Water and Sanitation has with municipalities in respect of water. Secondly, the Constitution (1996) instructs the spheres of government to avoid legal processes and cooperate with one another by intervening to execute the function if the sphere responsible for the function lacks capacity. This thesis explores the possible use of two statutory instruments of cooperative government and intergovernmental relations as strategies to complement and support the conventional enforcement measures in the water sector: the establishment of water intergovernmental forums; and the use of implementation protocols to supervise municipalities that chronically lack capacity as a way of providing targeted support and monitoring to facilitate an effective compliance and enforcement regime in the water sector.

This dissertation endeavours to provide a practicable method to evaluate any existing or proposed irrigation water use against the purpose of the National Water Act (Act 36 of 1998) (NWA) as described in section 2. It firstly focuses on section 2(d) of the NWA, which requires the promotion of efficient, sustainable and beneficial use of water in the public interest. Although the evaluation of the degree to which this purpose is being achieved by a specific irrigation water use is the topic of this dissertation, it is further argued that by viewing this aspect comprehensively enough, it actually covers five other requirements of section 2, concerning irrigation water use. The efficiency and effectiveness of the irrigation operation is evaluated. It includes irrigation technology aspects, the efficiency of the relevant irrigation systems and water supply infrastructure, irrigation management skills and the proper application of best management practices by the irrigator that determines the overall efficiency and effectiveness of the irrigation operation. Aspects that determine sustainability of the particular water use that are included in the evaluation, entail among others the protection of the water resource (surface and groundwater) and other natural resources, the riparian habitats and all relevant aquatic ecosystems. Other aspects concerning sustainability are the prevention and control of the chemical pollution of the water and soils resources through the irrigation process, as well as salination and water-logging of land through wrong agricultural and irrigation practices. A further aspect is investigated here for a particular water use namely whether it really represents beneficial use in the public interest, by analysing the socio-economical and political considerations unique to every particular situation. This also requires the consideration of intangible benefits and costs, which are by nature subjective and for which the specific requirements will differ from the one situation to the other. In order to provide a procedure that is transparent and consistent enough to withstand any challenge from users or proposed users in this regard, it has been decided to utilise amongst others the BBBEE scorecard, which has been developed and is presently being implemented by government, also in terms of section 27(1)(b) of the NWA. / Dissertation (MEng)--University of Pretoria, 2008. / Civil Engineering / unrestricted

The paradigm shift in water quality management of South African water resources was based on current international trends. This significant move was from a previous emphasis on source management to a focus on finding a balance between water resource protection and water use. The current approach requires that water quality and quantity should be maintained for sustainable functioning of both the natural aquatic environment and socioeconomic development. This approach has placed the assessment of water quality status as a key decision tool in water quality management. Various assessment tools have been utilized to quantify the quality of South African water resources. In this study we assessed the compatibility of some of the methodologies that have been used in the Department of Water Affairs to determine and report on the water quality status of the resource. During the assessment the context and manner in which these methodologies can be utilized in water quality management were also addressed The Compliance Evaluation and Fitness for use categorization methodologies are both used to describe the water quality threshold of potential concern when dealing with the resource. Compliance Evaluation methodology uses a pass or fail assessment, while the Fitness for use categorization methodology uses a scaled approach allowing for the assessment of gradual change in the system. The out puts of these two methodologies, the Resource Water Quality Objectives and Fitness for use categories/ classes have both been used in the department as benchmarks to describe the current water quality status The assessment of the two methodologies indicated that there are similarities in the approaches and the principles behind the two processes. The observation of the results, however, indicated differences in the manner of presentation of the results, the interpretation of the outcome and in how water quality management measures that needs to be implemented are linked. Both methodologies are easy to apply when conducting water quality status assessments. However, the two methodologies are not sufficient on their own when making decisions on water quality management. It was concluded that although the compliance evaluation methodology can play a pivotal role when setting end of pipe standards, the process needs to consider the gradual changes of water quality in the river system in order to enable instigation of different water quality management measures at appropriate levels. Further it was recommended that with some modification the two approaches can be applied to assess water quality to support adequate water quality management decisions at various levels. / Dissertation (MSc)--University of Pretoria, 2013. / gm2014 / Animal and Wildlife Sciences / Unrestricted

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.