Some comments on water rights in South Africa
Abstract
Human life, as with all animal and plant life on the planet, is dependant upon
fresh water. Water is not only needed to grow food, generate power and run
industries, but it is also needed as a basic part of human life. Human
dependency upon water is evident through history, which illustrates that human
settlements have been closely linked to the availability and supply of fresh
water.
Access to the limited water resources in South Africa has been historically
dominated by those with access to land and economic power, as a result of
which the majority of South Africans have struggled to secure the right to water.
Apartheid era legislation governing water did not discriminate directly on the
grounds of race, but the racial imbalance in ownership of land resulted in the
disproportionate denial to black people of the right to water. Beyond racial
categorisations, the rural and poor urban populations were traditionally
especially vulnerable in terms of the access to the right.
The enactment of the Constitution of the Republic of South Africa 1996, brought
the South African legal system into a new era, by including a bill of fundamental
human rights (Bill of Rights). The Bill of Rights makes provision for limited
socio-economic rights. Besides making provision for these human rights, the
Constitution also makes provision for the establishment of state institutions
supporting constitutional democracy.
The Constitution has been in operation since May 1996. At this stage, it is
important to take stock and measure the success of the implementation of
these socio-economic rights. This assessment is important in more ways than
one, especially in the light of the fact that many lawyers argued strongly against
the inclusion of the second and third generation of human rights in a Bill of
Rights. The argument was that these rights are not enforceable in a court of law
and that they would create unnecessary expectations of food, shelter, health,
water and the like; and that a clear distinction should be made between first
generation and other rights, as well as the relationship of these rights to one
another.
It should be noted that there are many lawyers and non-lawyers who
maintained that in order to confront poverty, brought about by the legacy of
apartheid, the socio-economic rights should be included in a Bill of Rights. The
inclusion of section 27 of the 1996 Constitution has granted each South African
the right to have access to sufficient food and water and has resulted in the rare
opportunity for South Africa to reform its water laws completely. It has resulted
in the enactment of the Water Services Act 108 of 1997 and the National Water
Act 36 of 1998.
In this paper the difference between first and second generation rights will be
discussed. The justiciability of socio-economic rights also warrants an
explanation before the constitutional implications related to water are briefly
examined. Then the right to water in international and comparative law will be
discussed, followed by a consideration of the South African approach to water
and finally, a few concluding remarks will be made.