Construing the transformed property paradigm of South Africa’s water law: new opportunities presented by legal pluralism?

Abstract

ABSTRACT The right to have access to sufficient water is enshrined in section 27(1)(b) of the Constitution of the Republic of South Africa 1996. This right resulted in the adoption of the National Water Act 36 of 1998 (NWA) which fundamentally changed the foundations of the country’s water law system. The preamble to the NWA states that water is “a scarce natural resource that belongs to all people”. The Act broke new ground by introducing the concept of public trusteeship into the South African water law. Section 3 of the NWA stipulates that water falls under the centralised control of the public trustee to, inter alia, improve the allocation, management, use, conservation and equality of access to this scarce resource. The concept of public trusteeship provides for water allowances granted at the discretion of the public trustee. This new system is a fundamental step away from the previous regulatory regime that provided for private and exclusive rights to water use. We are therefore witnesses to a transformation in which property rights in the water sector were redefined, often to the dismay of landowners. In the quest to demystify the concept of public trusteeship in South Africa’s water law, this article sets out to provide and evaluate a diverse set of property rights paradigms against which the public trusteeship-based property regime in water resources law can be measured. A better understanding of the property rights paradigm within which water as a natural resource is presently regulated may contribute to clarity regarding the nature, duration and possible limitations of individual rights to water acquired in terms of the NWA. Through the mobilisation of legal pluralism, the article provides new opportunities for construing the property rights paradigm of the NWA.