Abstract

VILJOEN, Germarié  and  VAN DER WALT, Kobus. South Africa's water crisis - an interdisciplinary approach. Tydskr. geesteswet. [online]. 2018, vol.58, n.3, pp.483-500. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2018/v58n3a3.

Water is an essential but scarce resource. Worldwide, an estimated 663 million people do not have access to sufficient and safe water for domestic use, and the demand is on the increase. It is estimated that the world will have to cope with a 40 per cent water supply shortfall by 2030, which will unavoidably affect the availability of drinking water, sanitation and food production. South Africa faces a particularly gloomy water reality. Not only is South Africa plagued by severe drought conditions, but it also has a poor record of water conservation, outdated and inadequate water treatment infrastructure, and lingering concerns about the quality and degradation of the already limited volume of available water. South Africa's political history, characterised by a reality of unequal access to water, adds additional and unique challenges as far as water resource regulation is concerned. Following the advent of the constitutional era, a novel legal framework for water resources regulation was developed in South Africa. The National Water Act 36 of 1998 (NWA) was promulgated with the primary aim of reforming the law relating to water resources. The NWA broke new ground by inter alia introducing the concept of public trusteeship into the South African water law. Section 3 of the NWA provides that all water use rights fall under the centralised control of the state, or public trustee, to improve the distribution, management, use, conservation and equitability of access to this scarce resource. Although the concept of public trusteeship entered the South African legal realm without much fanfare, it fundamentally changed the foundation and regulatory practices of the South African water law dispensation. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to "all water " in South Africa and that acknowledges that the country's water "belongs to all people". Accordingly, the old system that provided for exclusive water use rights, and that was generally to the detriment of the majority of South Africans, has been replaced by a system that provides for water allowances granted at the discretion of government. The introduction of the notion of public trusteeship therefore denotes a major transformation in which existing property rights are re-defined. With this new system of the NWA, the South African government has effectively nationalised all of the nation's water resources. It has been almost 20 years since the transformation of South Africa's water regulatory framework, but the reality is that, despite the transformation brought about by the NWA, studies show a decline in the quantity and quality of South Africa's water resources. Adding to the problem that South Africa is a water scarce country, the demand for water is on the increase. Severe pollution such as the fact that approximately 4 billion litres of raw or partially purified sewage are discharged daily into South Africa's dams and rivers, as well as the widespread destruction of wetlands by mining and agricultural activities continue to impact negatively on the quality of the scarce water resource. One of the consequences of this is the growing presence of toxic blue-green algae in the water resources of South Africa, with an estimated 62per cent of aquatic bodies already contaminated with cyanobacteria - the highest incidence in the world. In light of this water crisis, some may argue that the new regulatory framework, with its statutory objectives and strategies, is flawed. In order to determine whether the new regulatory framework for South Africa's water resources is indeedflawed, or whether the NWA is rather a beacon of hope amid the country's water crisis, this article analyses the novel water regulatory framework with specific reference to the concept ofpublic trusteeship. In the second part, the article scientifically describes the state of South Africa's water resources. The third and last part of the article provides a legal response to the growing pressure on South Africa's water resources. It considers how the public trusteeship paradigm can be used to ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable manner, for the benefit of all persons. The article confirms that the public trust regulatory regime is sufficientfor water regulation in South Africa, and particularly relevant to a solution to the country's water crisis, as it offers the necessary mechanisms to achieve lasting protection for water resources, and ultimately to enhance sustainable water resource management.

Keywords : accountability; fiduciary responsibility; public trusteeship; water crisis; water degradation; solutions.

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