Water Act 54 of 1956

The Water Act 54 of 1956 replaced the 1912 Irrigation Act in 1956, and although the
Watre Act was seen as necessary in order to change the emphasis of watre supply
from agriculture to the burgeoning mining and industry sector, the Act did not replace
the riparian rights system. Yet the Act’s partial entrenchment of riparian rights led to
the majority of the population being restricted in their access to water, such inequality
in access almost invariably being suffered by the Black population.1

Central to the operation of the Act was the distiction between private and public
water.2 Private water was defined as all water which rises or falls naturally on any
land or naturally drains or is led onto one or more pieces of land which are the subject
of seprate origial grants, but is not capable of of common use for irrigation purposes.
The owner of the land on which private water was found had exclusive use and
enjoyment of such water3, this was subject to the proviso taht, where the water flows
ina known and defined channel over more than one piece of land, a lower owner who
can show that he has used beneficially a share of the water for an uninterrupted period
of thirty years is entitled to claim from the owner of the land on which the water arises
a reasonable store in such water, but such person could not pollute it.4
Public water was defined as any water flowing or fraud in or derived from the bed of a
public stream, whether visible or not5. “Public stream” was defined as a natural
stream, whether or not such channel is dry during any period of the year and whether
or not its confirmation has been changed by artificial means, if the water therein is
capable of common use for irrigation on two or more pieces of land and also on state
land which is riparian to such stream, provided that a stream which fulfills the
foregoing conditions in part only of its course shall be deemed to be a public stream
as rehareds that part only.
The right to use of public water was divided into three categories: agricultural
purposes, urban purposes and industrial purposes. The right to use in respect of the
first two categories rested in an owner of land riparian to the public stream. Such
owner had a share of the normal flow of the water in a public stream, such share fixed
by the water court6. A riparian owner was permitted to use all the surplus water(all
water flowing in a public stream which was not normal flow) for beneficial
agricultural or urban purposes annd need not abate such use in favour of other riaprian
owners.7 Certain persons who were not riparian owners were permiotted to use public
water for limited purposes specified by the Act.8
The use of public water for indutrisl purposes was subject to the permission of a water
court or the Minister,9 but a person being supplied with water by a local authority or
similar body with the right to supply/control water was not required to have
permission from the water court. A person was entitled to use of public water for any
of the defined purposes only to the extent that he used such water beneficially.10 Use

1 The Hstory of the Water Act 54 of 1956 in the Light of New and Emerging Policy
2 Principles of South African Water Law
3 Section 5(1)
4 Section 23
5 Section 1
6 Section 9(1) read with Section 52
7 Section 10(1)
8 Section 7 and Section 14
9 Section 11(1)
10 Section 11(1)(ii)

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of public water for ay purpose which amounted to a wastage of such water was
prohibitde and was an offence.11 Theer was no fee for using water extracted directly
from a public or private water source.

National Water Act 36 of 1998

Once the new Constitutional order arrived, it was clear that issues prominent on the
agenda of the new government were redressing the impacts of many years of
apartheid, including replacing the legilsation underpinning discrimninatin and
oppression, as well as development. The water law, although not expressly a statute
furthering apartheid, would have to be overhauled in order to provide, primarily, for
equitable access by all South Africans to water. The new government
initiated a process of developing a set of principles and objectives for a new water
law, based on extensive public consultation. This process culminated in the
publication of the “White Paper on a National Water Policy for South Africa”.12 This
document highlighted the water equity issues prevailing in 1997 between 12 and 14
million South Africans (out of a total population of about 40 million) were without
access to safe water and over 20 million without adequate sanitation. The vast
majority of these were Black, mainly living in peri-urban and rural areas. The impact
of this on women, many of whom spent alot of time and effort on fetching water, and
children, many of whom died from avoidable diseases reulting from inadequate
sanitation and lack of clean water, was specifically noted.

In order to appreciate the law reform of the mid 1990’s, it will be useful to consider
the Constitutional context within which the reform took place.13 The environmental
right discussed in Chapter 2 is clearly relevant, as is Section 27 which provides for the
right to water as follows:
“(1) Everyone has the right to have access to-
(b) sufficient food and water
(2) The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realization of each of the rights”

The new water legislation in South Africa must be considered in the context of the
requirements of these two fundamental rights. Other relevant rights recognized in the
South African Constitution innclude equality,dignity,right to life, property and
administrative justice. The Constitution is also relevant as far as legislative and
administrative competence i the field of water is concerned. Water appears on neither
Schedule 4 and 5 meaning that it is of exclusive national legislative competence. This
reflex the national importance of water in a water-scarce country which requires water
for human and economic development. The controlbody for water is the Department
of Water Affairs and Forestry, which has regional departments.14

The National Water Act provides that the national government is the public trustee of
the nation’s water resources, which requires it to ënsure that water is protected, used,
devloped, conserved, managed and controlled in a sustainable and equitable manner,

11 Section 9(1)(a), read with Section 70

12 Department of Water Affairs and Forestry(April 1997)
13 Environmental law
14 Ibid
for the benefit of all persons and in accordance with its constitutional mandate.15 The
responsibilty of the Minister of Water Affairs and Forestry is to ensure tahtwater is
allocated equitably and used beneficially in the public interest, while promoting
environmenatl values”.16Since the Act abolishes the common law historical
distinction between public and private water, persons cannot in general own water and
all water use is now subject to a system of licesing in common with many other
countries.

The National Water Act operates in tandem with the Water Services Act, which has as
its main objectives:
a) the right of access to basic water supply and the right to basic sanitation
necessary to secure sufficient national water supply and the right to basic
sanitation necessary to secure sufficient water and a environment not harmful
to human health or wellbeing
b) the setting of national standards and norms for tariffs in respect of water
services
c) the preparation and adoption of water services development plans by water
services authorities
d) a regularity framework for water services institution and water services
intermediaties
e) the establishment and distablishnet of water boards and water services
committees and their duties and powers
f) the monitering of water services and intervention by the Minister or by the
relevant Province
g) finnancial assistance to water services providers and
h) the promotion of effective water resource management and conservation17

In order to implement these objectives , the Act provides for the establishment of
several water services institutions – water services authorised, water services
providers, water services intermediaries, water boards and water services committees-
and their powers and responsibilities. The Act provides in Section 3 for everyone to
have the right of access to basic water supply and basic sanitation. Every water
services institution is required to take reasonbale measures to realise these rights,
which are subject to the limitations set out in the Act.18

Section 4 provides that a person may use water in or from a water resource for
purposes such as reasonable domestic use, domestic gardening, animal watering, fire
figting and recreational use,as sett out in Schedule 1. A person may continue with an
existing lawful lawful water use in accordance with Section 34, which provides that
“a person or that person’s successor in title, may continue with an existing lawful
water use subject to any existing conditions or obligations attaching to that use, or
subject to its replacement by a licence in terms of this Act... “or a person may use
water in terms of a general authorisation or licences under the Act. The crux of the
new dispensation in relation to the exercise of water rights, is contained in Section
4(4), namely that any entitlement granted to a person by or under the Act replaces any
right to use water, to obstruct or divert a flow of water, to affect the quality of water;

15 Section 3(1)
16 Section 3(2)
17 Section 2
18 Section 3(4)

3
to receice any particular flow of water, to affect the quality of water; to receive any
particular flow of water, to affect the quality of water; to receive any particular flow
of water; to receive a flow of water of any particular quality to construct, operate or
maintain any waterwork.

Water use is defined broadly and includes:

a) the taking and storing of water
b) activities which reduce stream flow
c) waste discharges and disposals
d) controlled activities(activities which impact detrimentally on a
water resource)
e) altering a water course
f) removing water found underground for certain purposes and
recreation.19
In generating, a water use must be licenced unless it is listed in Schedule 1, is an
existing lawful use, is permissable under a general authorisation or if a responsible
authority waives the need for a licence. The use of the water is conditional in that the
water may not be wasted and that it is subject to any limitations, restrictions or
prohibitions in terms of the Act or other applicable law.20 The Minister may limit the
amount of water which a responsible authority may allocate.21

Part 4 of Chapter 4 deals with stream flow reduction activities.22 Section 36 allows the
Minister, after public consultation, to regulate land-based activities which reduce
stream flow by declaring such activities to be stream flow reduction activities.
Whether or not an activity is declared to be stream flow reduction activity depends on
various factors, including the extent of the stream flow reduction, its duration, and its
impact on any relevant water resource and on other water users.

The seventh part this chapter regulates individual applications for licences for the use
of water.23 It sets out the procedures which apply in all cases where a licence is
required to use water but where no general invitatin to apply for licences has been
issued under Part 8. Water users who are not required to licence their use but who
wish to convert the use to a licenced use, may also use the procedure set out in this
Part.24 However, the responsible authority may decline to grant a licence when the
applicant is entitled to use the water under an existing lawful use or by general
authorisation. When considering an applicant and may also require the applicant to
undertake an environmental or other assessment, which assessments may be subject to
independent review. Once the responsible authity has reached a decision on the
licence application, it need to inform the applicant thereof as soon as possible and if
requested, has to provide the reasons for the decision.

Conclusion

The aim of this essay was to distinguish between the two Acts(Water Act 54 of 1956
and the National Water Act 36 of 1998) with regards to “public rivers”and “public
19 Section 2
20 Section 22(2)(b)
21 Section 23
22 Section 36
23 Subsection 40-42
24 Section 40
things” regarding the use thereof, and in so doing, discuss the transitional issues
which might have caused these changes.which i would like to refer to, is the restricted
use of water access, under the Water Act 54 of 1956, inadvertantly led to the
oppressed at the time (Blacks) suffering the most.It is, in my reasoning, never right
that a recognised law allow any one person to receive more favour than another, let
alone bias based on race. It would seem that reasonable minds are in agreement with
me, as our constitution states that everyone in our land is to be seen as equals25.
It is in this regard that I will commend the new National Water Act on rectifying the
injustice, and upholding a right in our constitution.

In the first place, the cause of the water access restriction under the Water Act 54 of
1956 was also the reason the Act come into being; to change the emphasis of water
supply from agriculture to the lougeoning mining the industrty. This might have been
successful had the legislature not retained the riparion rights system. This system was
the cause of water access restrictions by itself favoured the riparion owner over water
users simply on the basis of where the riparion owner was situated. Again the
National Water Act addressed this issue by making the State public trustee of the
nation’s water resources. And as such it is their duty to ensure that the water is
allocated equitibly and with beneficially in the publics interest, while promoting
enviromental values”.
This means that everyone is subject to use to use of public water as the State deems
fit, but with the State showing no bias to any party, this service strengthens the
Section 9 entrenched right to equality. It is now the state which decides the use of
public rivers.26

25 Section 9 of the Constition Act 108 of 1996

26 Silberberg and Schoeman’s The Law of Property 5th Edition