Taking stock of water governance in South Africa during the sixth administration

By the time this is published, South Africans will have participated in general elections to vote for whom they wish to represent them in the National Assembly and the various provincial legislative assemblies over the next five years.

A lot has happened since the previous general elections were held in 2019. In taking stock of its achievements, the sixth democratically elected administration since 1994 has been particularly active, especially with respect to water governance, as shown below.

Soon after his election in 2019, President Ramaphosa appointed Minister Lindiwe Sisulu to lead the then newly constituted Department of Human Settlements, Water and Sanitation. In November of that year, Minister Sisulu presented a National Water and Sanitation Master Plan (NWSMP) for implementation. At the time, the plan was praised for its sobering factual account of South Africa’s water situation. It contained a comprehensive collection of actions required in relation to water infrastructure development, institutional reform and capital and financial investment, with specific timelines by which specified actions needed to be performed. The NWSMP was widely consulted upon, and the agricultural sector actively participated in its creation.

In 2021, the water and sanitation and human settlements cabinet portfolios were split from one another, and Minister Senzo Mchunu was charged with responsibility for the water and sanitation affairs. Towards the end of that year, government approved the appointment of Dr Sean Phillips as (permanent) director-general of the Department of Water and Sanitation (DWS). The DWS also started the process of creating a Vaal-Orange Catchment Management Agency and published draft regulations on hydraulic fracturing (fracking) for comment.

The following year (2022), saw a range of important legislative and policy developments with respect to water governance. This included long-awaited Blue and Green Drop reports on water quality (with highly disturbing results), a business case for the creation of an independent water regulator, as well as a transformation charter (later renamed guidelines) for the conversion of irrigation boards to water user associations. This was followed by further draft regulations for the use of water for fracking and underground gasification.

The DWS also published a long overdue National Water Resources Strategy. This was followed by a draft national pricing strategy for raw water use charges and a draft national water infrastructure agency bill, as well as a notice of intention to extend the service area of Overberg Water to cover the entire Western Cape Province. Extensive stakeholder participation (including the agricultural sector) was welcomed and characterised the government’s legislative development processes.

In 2023, the DWS published notices regarding the updating of water registration information as well as a (further) notice to register certain wastewater uses. This was followed by amendments with respect to the general authorisation in respect of impeding or diverting water and altering of watercourses. A revision of the regulations regarding the procedural requirements for water use licence applications and amendments were also published in 2023, as well as a notice of intention to transform irrigation boards to water user associations and inviting proposals in respect thereof. The DWS also published a draft national climate change response strategy for the water and sanitation sector.

At the end of 2023, the DWS published a draft national water amendment bill and water services amendment bill for comment. The National Water Amendment Bill proposes sweeping changes to water governance in South Africa (this process is still underway).

In 2024 the DWS introduced a water and sanitation services policy on privately owned land.

Most of the past five years’ proposed legislative and policy changes remain unfinalised, of which the most important (especially for the agricultural sector) include:

  • the conversion of irrigation boards to water user associations;
  • tydraulic fracturing regulations;
  • pricing strategy on raw water charges;
  • regulations regarding the procedural requirements for water use licence applications; and
  • the National Water Amendment Bill.

A major concern, however, remains the unfinalised verification and validation of existing lawful water uses (ELUs). Since 1998, when South Africa’s current National Water Act came into effect, registered ELUs have been allowed to continue as a transitional mechanism whereby water users may continue using water until such time as compulsory licensing is called for. Until such time as verification and validation of such ELUs is finalised (as expected to be done in 2026), government will arguably not have the most important piece of the South African water governance puzzle. This is significant, since without verification and validation of existing lawful water uses being completed,  government cannot conclusively show that it knows which water uses are lawfully exercised, by whom, and where (and whom to bill for it).

Legislative and policy changes, which stand to materially affect existing water use entitlements, need to be procedurally and administratively fair. This includes government having to take all relevant considerations (including ELUs) into account in its legislative processes.

Having said that, the sixth administration will be remembered as a particularly vigorous one when it comes to water-related governance and legislative and policy development in South Africa. By all accounts, and regardless of the outcome of the 2024 elections, this is likely to carry over into the seventh administration.