The public management of water resources in South Africa

The main purpose of the National Water Act 36 of 1998 is to provide for water resource management on an equitable basis to achieve the sustainable use of water for the benefit of all water users. The previous distinction between public and private water was abolished and the Minister of Water Affairs and Forestry acts as trustee of the nation's water resources to ensure that water is protected, used, developed, conserved, managed, and controlled to the benefit of all people. As a result no individual has an exclusive right to the use of water, and water resources are national assets managed by the state. The Act provides that, in general, any water use must be allocated by way of general authorization, licenses, or permits. The discretionary powers of the responsible water authority in dealing with applications for and allocation of use rights, as well as compensation for previous water users who lost water use rights, are dealt with in the Act. Although no water user had ownership of water in terms of common law principles or the previous Act (unless such water had been separated and contained), these water users did have property rights as stipulated by section 25 of the Constitution of the Republic of South Africa, 1996 in the form of limited real rights and other use rights recognized by the previous Act. The question arises whether the provisions of the new Act to terminate the exclusive water rights constitute a deprivation or an expropriation of such property rights. The new property concept in terms of section 25 and the distinction between expropriation and deprivation are examined in this paper. The requirements for expropriation, deprivation, and constructive expropriation (inverse condemnation) are discussed with reference to applicable case law. The preference of water entitlements exercised in the public interest to previous exclusive water rights of individuals, and the possibility of compensation to previous users who lost their water rights, are indications of inverse condemnation.