Waterreg in 'n nuwe konstitusionele bedeling / Carene Wessels
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1. Purpose of study: Water is a scarce and valuable resource in South Africa Most parts of the country do not have a high rainfall and the greater part of South Africa is semi-arid and subject to variable rainfall. Furthermore, access to water in terms of the previous Water Act 54 of 1956 was directly tied to ownership. The distribution of water rights has as a consequence been influenced by apartheid patterns of landownership. Due to this situation in South Africa, more than I6 million people do not have access to clean water for domestic use. Water is one of the most important resources determining a nation's health and wealth. The sustainable use and management of this scarce resource is of utmost importance. The National Water Act 36 of 1998 attempts to transform the injustices of the past with regard to restricted access to water and poor sustainable management of water as a scarce resource. The purpose of this research project was of a dual nature. Firstly, the aim was to make an in-depth study of the changes that the Natural Water Act 36 of 1998 brought about to the rights of all water users and secondly, to determine if the principles in the National Water Act 36 of I998 constituted deprivation or expropriation of the property rights of water users in terms of section 25 of the Constitution of the Republic of South Africa 108 of 1996. 2. Conclusions: The purpose of the National Water Act 36 of I998 as stated in the preamble, is 10 provide for water resource management, which achieves sustainable use of water for the benefit of all water users. The National Water Act 36 of 1998 fundamentally changes the manner in which persons obtain the right to use water from the position prior to 1998. The Water Act 54 of 1956 was in operation for more than 40 years, governing the water law in South Africa. Central to the operation of the Water Act 54 of I956 is the distinction between public and private water. The owner of the land on which private water was found had exclusive use and enjoyment of such water. It wasn't clear from the principles in the Act if water users could after 1994, vest property rights with regard to water. The conclusion made during the research is that water users had no right of ownership towards water as the Act only stated that owners of land on which water was found had the exclusive right to the use of such water. Furthermore, case law did not give a clear indication on the matter of the legal status of water found on a landowner's land. On the other hand, there was no right of ownership in public water. Generally, riparian owners used public water but it was clear from the Act that there was no right of ownership towards public water. It was realised that the Water Act 54 of 1956 did not comply with the demand of water allocation and management in South Africa's new constitutional dispensation and a process of intensive public participation resulted in the promulgation of the National Water Act 36 of 1998. The Act drastically changed the basis of water management and the legal status of water. The most important change in the new Act is the principle that all water is placed under the trusteeship of the national government. With this principle, the distinction between public and private water is done away with. The result of this principle is that no individual can have exclusive rights to the use of water and that the water resources in South Africa is a national asset managed by the state for the benefit of all The Act provides that in general any water use must he licensed. Even though no water user had ownership of water in terms of the previous Act, these water users did have rights in property as constituted in section 25 of the Constitution of the Republic of South Africa, in the form of limited real rights and other rights as recognised in terms of the previous Act. The question arises if the principle in the new Act, which terminates the right to use water exclusively, is in accordance with section 25 of the Constitution of the Republic of South Africa 108 of 1996. Section 25 of the Constitution regulates the principles underlying deprivation and expropriation of property rights. As a result of the research conducted, it is held that the principles in the National Water Act 36 of 1998 constitute a deprivation of water users' property. This argument is followed due to the fact that the principles in the National Water Act regulate the property which water users had before the commencement of the Act. A deprivation of property may not be arbitrary and must be affected by a law of general application. Expropriation on the other hand, is a form of deprivation which is subject to more stringent safeguards, namely the public interest requirement and the payment of compensation. On this definition of expropriation, it seems as if the regulating of water rights in terms of the National Water Act constitute a deprivation of property by means of law of general application that operates non-arbitrary. The National Water Act passes the test of general application as well as non-arbitrary nature of the Act. Water users who are deprived from the exclusive right to use water, have no right to compensation as the taking of the rights in property do not constitute expropriation. South Africa is in the unique position to develop new water law legislation which will regulate the use of water and ensure that all people in the country have fair and equal access to water resources. Few guidelines exist towards the interpretation of the constitutionality of the principles in the National Water Act and case law on this matter is eagerly awaited.
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