The South African water dispensation was changed dramatically with the proclamation of the National Water Act 36 of 1998. The distinction that the previous water dispensation made between private water and public water are no longer in use and all the water resources in South Africa now vest in the national government as public trustee. The South African water resources are regulated by the NWA and removed from the sphere of private ownership. NWA makes provision for licensed water use although not every form of water use requires a license for the use to be permitted. The nature of water use entitlements granted in terms of the NWA will be investigated in this paper in order to see how these entitlements must be used in the estate planning process. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2011.

The South African water dispensation was changed dramatically with the proclamation of the National Water Act 36 of 1998. The distinction that the previous water dispensation made between private water and public water are no longer in use and all the water resources in South Africa now vest in the national government as public trustee. The South African water resources are regulated by the NWA and removed from the sphere of private ownership. NWA makes provision for licensed water use although not every form of water use requires a license for the use to be permitted. The nature of water use entitlements granted in terms of the NWA will be investigated in this paper in order to see how these entitlements must be used in the estate planning process. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2011.

The South African coastal and marine environment is an essential ecologic and economic asset. Its associated services and products are substantially contributing to economic growth and sustainable development of the country. However, it is internationally and nationally recognised that land-based marine pollution (LBMP) is the most important single risk to the health and sustainability of coastal and marine waters and the associated ecosystems. The regulation of LBMP at the national level is still difficult and challenging. The issue of LBMP management has only recently been introduced in South Africa with the development of the National Programme of Action to Protect Marine Environment from Land-based Activities, 2008. South Africa is only starting to consider the question of LBMP regulation. This thesis aims to conduct a critical analysis of the South African regulatory framework pertaining to LBMP in comparison to international best practice and the French regulatory framework, in order to identify the key South African challenges in this regard and to make recommendations to address them. In order to do so, this research commences by providing an analysis of LBMP and the theoretical foundations associated with LBMP regulation, as promoted by international best practice. The study identifies and assesses the main regulatory features to be considered in the development, implementation and/or assessment of a regulatory framework pertaining to LBMP. These features will form the methodological framework to conduct the comparative legal assessment between the French and South African regulatory frameworks pertaining to LBMP. This thesis then provides a detailed and thorough legal analysis of the French and South African regulatory frameworks pertaining to LBMP using the methodological framework developed using guidance from international best practice. Finally, based on lessons learnt from the comparative legal study, this study concludes with a set of recommendations for the South African context. / Thesis (LL.D.)--North-West University, Potchefstroom Campus, 2011.

The South African coastal and marine environment is an essential ecologic and economic asset. Its associated services and products are substantially contributing to economic growth and sustainable development of the country. However, it is internationally and nationally recognised that land-based marine pollution (LBMP) is the most important single risk to the health and sustainability of coastal and marine waters and the associated ecosystems. The regulation of LBMP at the national level is still difficult and challenging. The issue of LBMP management has only recently been introduced in South Africa with the development of the National Programme of Action to Protect Marine Environment from Land-based Activities, 2008. South Africa is only starting to consider the question of LBMP regulation. This thesis aims to conduct a critical analysis of the South African regulatory framework pertaining to LBMP in comparison to international best practice and the French regulatory framework, in order to identify the key South African challenges in this regard and to make recommendations to address them. In order to do so, this research commences by providing an analysis of LBMP and the theoretical foundations associated with LBMP regulation, as promoted by international best practice. The study identifies and assesses the main regulatory features to be considered in the development, implementation and/or assessment of a regulatory framework pertaining to LBMP. These features will form the methodological framework to conduct the comparative legal assessment between the French and South African regulatory frameworks pertaining to LBMP. This thesis then provides a detailed and thorough legal analysis of the French and South African regulatory frameworks pertaining to LBMP using the methodological framework developed using guidance from international best practice. Finally, based on lessons learnt from the comparative legal study, this study concludes with a set of recommendations for the South African context. / 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.

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.