Die nasionalisering van waterregte in Suid-Afrika : ontneming of onteiening? / deur E. van der Schyff
Van der Schyff, Elmarie
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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.
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