Redressing legal pluralism in South Africa’s water law

ABSTRACT

During apartheid, South Africa formalized legal pluralism as territorial and institutional segregation that legitimized the white minority’s grab of most land, water and mineral resources. In the homelands on the remaining 13% of the country, allied tribal chiefs controlled second-class customary land and water rights. Under the democratic dispensation, the new Constitution (1996) and National Water Act (1998) aim at redressing this racial discrimination. However, these goals have not been achieved. Building on literature, field research and ongoing policy and legal debates, this paper traces causes for this failure and examines whether and how a different interpretation of statutory law can decolonize past legal pluralism. A main cause of this failure is the continued power by white large-scale water users and their consultants and lawyers. Monopolizing technical and legal knowledge, they fiercely defend apartheid era’s Existing Lawful Uses by 1998 and relatively easily obtain administrative licences for post-1998 water uptake, while claiming excessive monetary values of entitlements to water resources that the state, with tax payers, as custodian holds. In contrast, black water users’ pre-1998 Existing Lawful Uses have not been defined as yet and burdensome licences processes for new water uptake are inaccessible to the many smaller-scale black water users. The paper concludes that, in former homelands, the legal status of living customary water tenure should be elevated and protected. Inclusive facilitated processes can further clarify the “sharing in” of water resources flowing over or under the communities’ territories inside the boundaries of former homelands, also to enable gradual alignment with constitutional rights. However, in “sharing out” these water resources with powerful third parties, including foreign investors, customary water tenure should be fully protected. As a core minimum of highest priority water resource rights across the country, the current Basic Human Needs Reserve should include all water-related constitutional rights, so also water for sufficient food, and be implemented.

KEYWORDS:

• Customary water tenure
• South Africa
• homelands
• historical justice

Disclosure statement

The authors declare that there are no conflicts of interest.

Notes

1 Initially, some 19 CMAs were considered, but only two have been established, while the final number of nine or even one is still under discussion. This fate of CMA establishment hinders any redistributive progress that hinges on their function.

2 Literature on water tends to focus on sub-groups collectively managing a particular piece of infrastructure. Understanding an entire community as primary agent is new in the water sector. In contrast, a community as primary agent is common in literature on legal pluralism and customary rights to land, forests, or grazing areas. Moreover, communities manage their resources in an integrated manner. Significantly, land and forest legislation tend to better recognize community-based management of the water resources as appurtenant to the land than water law itself (Rights and Resources Initiative and Environmental Law Institute 2020).