Environmental Law: Water Rights & Water Pollution in South Africa

Water use in South Africa is highly regulated by environmental laws and various legislation on national, provincial, and local (municipal) levels.

The main statute governing environmental law in South Africa is the National Environmental Management Act 107 of 1998 (NEMA). There are various Specific Environmental Management Acts (SEMA) such as the National Water Act 36 of 1998 and Water Services Act 108 of 1998.

The NWA changed the concept of water rights from water belonging to the property to the concept of water use entitlement.

The Government acts through the Minister of Water and Sanitation, Department of Water and Sanitation (DWS) and Department of Environment, Forestry and Fisheries (DEFF). On Provincial levels, the Environmental Directorates are responsible for the administration and enforcement of environmental laws.

Environmental laws place a general duty on all of us to take care of our environment and to take all reasonable steps to prevent pollution and mitigate the effects of pollution. Should we as natural persons or juristic companies ignore or be ignorant towards our duty of care, we will lose our freedom because criminal prosecutions as well as ecological and civil claims will become the new normal. TAKE NOTE of the principles, the “Polluter pays” and “Cradle to the Grave” together with the risk and liabilities associated therewith.

Governments cannot alone implement, monitor, and police the responsibility to take care of the environment for the benefit of future generations. It is crucial that specialists in their respective fields, companies, civil society and the public get involved, get educated and be proactive. This means everyone, young and old, you and I!

Stakeholder meetings should always be conducted with professional politeness and respect. Strategies and tactics of sarcasm, intimidation and degradation will bear no fruit.

The preparation of sale agreements and sale of business agreements should be done by professionals, as proper contractual provisions and insurance protection clauses must be provided for in these types of agreements.

We only have one earth. Let us all make the effort to take care of her. If we do not apply the duty of care towards her and each other the consequences are fatal.

Listen to the song by Barry Greenfield: Water is the new Gold

Legal Lowdown

South Africa is a relatively water-scarce country. The regulation and implementation of water use is therefore very important. Water use in South Africa is highly regulated by environmental laws and various legislation on national, provincial, and local (municipal) levels.

The main statute governing environmental law in South Africa is the National Environmental Management Act 107 of 1998 (NEMA). There are various Specific Environmental Management Acts (SEMA) such as the National Water Act 36 of 1998, Water Services Act 108 of 1998, Environment Conservation Act 73 of 1989, National Environmental Management: Air Quality Act 39 of 2004, National Environmental Management: Waste Act 59 of 2008, National Environmental Management: Integrated Coastal Management Act, 24 of 2008 and National Environmental Management: Protected Areas Act, 57 of 2003.

The Constitution

Our right to access clean water is a constitutional right.

Section 24 of our Constitution provides for the right, that everyone has, to an environment that is not harmful to our health or well-being. Accordingly, it is our right that the environment is protected for present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation, secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development,

Legislation

The National Water Act 36 of 1998 (NWA) and The Water Services Act 108 of 1998: (WSA)

NWA is the main act regulating water and replaced previous laws applicable to water rights.

NWA states that South Africa must ensure its water resources are protected, used, developed, conserved, managed, and controlled in a sustainable and equitable manner for the benefit of all people. Its aim is to also protect the environment, manage the effect of floods and droughts, and meet international standards.

The right to access water is confirmed in Section 3(1) of WSA. Everyone has the right to have access to a basic water supply and basic sanitation and an environment that is not harmful to our health or well-being.

The availability of water is a primary resource that determines the potential of a farm as well as the value of the land. While soil and climate are also important to farming, water is crucial for irrigation, the production of crops and livestock farming. The value of the land, therefore, increases when water is available.

The NWA changed the concept of water rights, from water belonging to the property to the concept of water use entitlement. Water rights will eventually disappear from the title deed conditions. The Act stipulates that a person or legal entity becomes a water user by registration and that they are only entitled to use water on a specific property.

The Government acts through the Minister of Water and Sanitation, Department of Water and Sanitation (DWS) and Department of Environment, Forestry and Fisheries (DEFF). On Provincial levels, the Environmental Directorates are responsible for the administration and enforcement of environmental laws.

Application for the use of water must be made to the Department of Water and Sanitation. This will allow the water affairs department to gather the information required for the management of the country’s water resources. The data includes the applicant’s name, location, amount of water use and reason for the water use.

Once the water use is registered, it does not automatically entitle the applicant to use water. The entitlement must also be verified. While waiting for verification, the applicant will receive a registration certificate – the only official document that indicates what the eventual water entitlement will be. Once verified, a water use licence will be issued and replaces the registration certificate.

The Holder of an entitlement to use water may surrender the entitlement or part thereof in lieu of a different licence application for other land and on condition that the subsequent supplication is granted.

In terms of Section 21 of NWA, there are various categories of water use such as taking water from a water source, storing water, impeding or diverting the flow of water in a water cause, stream flow reduction activities, controlled activity, disposing of waste that may detrimentally impact a water resource, alter the bed, banks, cause or characteristics of a water source, removing, disposing of, discharging underground water or recreational purposes.

An applicant may also be requested to provide security relating to environmental damage caused by an authorised activity prior to the issuing of a licence.  The Water Licence Application and Appeal Regulations provide the mechanisms.

The time periods to obtain consents, licences, authorizations, or permits are lengthy. A Basic Assessment Report (BAR) can take approximately 6 months whilst an Environmental Impact Assessment (EIA) may take 10 to 12 months or longer because of the procedure, site inspections, if necessary, public participation with interested and affected parties and the prescribed public participation periods, submission of technical reports, consideration and decisions may often take more than 12 months.

Pollution

What is water pollution in the context of environmental law?

Water pollution is the release of substances into subsurface groundwater or lakes, streams, rivers, estuaries, and oceans, to the extent that these substances interfere with the beneficial use of the water or with the natural functioning of ecosystems.

Who is liable and accountable?

Section 28 of NEMA and Section 19 of NWA provides for a general duty of care to prevent and remedy pollution or environmental degradation. The principles and liabilities of “Polluter pays” and “Cradle to the Grave” apply. Anyone associated with the polluter, such as an employee, manager, agent or company director, could also be liable and convicted of pollution if no reasonable steps were taken within their power to prevent it.

High Penalties may be imposed for non-compliance with issued directives. R5 – 10 million and/or imprisonment of up to 10 years depending on the offence.  Potential personal criminal liability for directors, shareholders, employees or agents may be imposed. The Director General or the Head of Department on national and provincial levels may appoint Environmental Management Inspectors, as authorised officials (green scorpions) to administer, issue and enforce compliance notices and directives to comply with certain conditions and to ensure that pollution or environmental degradation is addressed.  

3 types of environmental liability are applicable. Criminal, civil and ecological. Costs for damages and costs incurred to rehabilitate the environment can be claimed for in the criminal trial without the need to lodge a separate civil claim against a convicted person.

The owner of the land, person in control of the land, or occupier or user of the land on which any activity or process is performed that may cause water pollution must take all reasonable steps to prevent any pollution from occurring, continuing, or recurring.

The relevant authorities can issue directives and remediation for which the persons may be liable. Cradle to Grave principles such as the Waste Act may hold the person responsible, for products and materials that are causing pollution, liable. Even a previous owner, against whom directives were issued, is still liable even after selling or transferring the land or business..

It is therefore very important to be aware of and to deal with any prior directives to do with the long-term environmental liabilities of parties to a sales agreement or sale of a business agreement. Parties must undertake appropriate due diligence investigations where there are environmental compliance, pollution or contamination-related risks and liabilities associated with a business. For instance, in terms of the Waste Act, no contaminated land may be transferred without notifying the new owner. If the land was declared a remedial site, the Minister must be notified of the transaction and conditions imposed by the relevant department must be complied with.

Proper contractual provisions and insurance protection clauses must be provided for in these types of agreements. Environmental liability policies and liability insurance that protects against payment of damages or fines may become very relevant in future.

Conveyancers and Property Practitioners should take note of environmental laws such as water use entitlements and possible pollution issues when preparing sale agreements.

Sources

• Farmers Weekly 6 January 2016, Rumpff Kruger
• Bowmans Guide to Environmental Laws in South Africa Digital 2020.05.26
• Short Course in Environmental Law and Compliance – Prof. Hennie Strydom. UJ Notes 2009
• Environmental Conference Overstrand Hermanus – 16 Feb 2023 – Various speakers

I end with the song by Barry Greenfield:  Water is the new Gold.

Let us all help to remove the blindfold, please.

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Written by Sophia de Klerk

Moderated and approved by Wessel de Kock

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