Panic and uncertainty for farmers regarding their water

Widespread panic and uncertainty currently occupy the minds of water users in the agricultural community. The commencement of the National Water Act in 1998 heralded a new era for water use in South Africa and many farmers feel that the Act threatens their survival as farmers. The uncertainty and panic that reigns in the agricultural community may be twofold in nature, namely general ignorance in the agricultural community regarding the letter of the law and questionable conduct by the Department of Water Affairs ("Department"). This article attempts to shed some light on the most important points in respect of which ignorance exists as well as highlight some events for which the Department should be yellow carded.

The verification procedure

The Department is currently working on a verification procedure to determine the legality of water use. The Act created a historic cut off for determining the legality of water use. In short it provides that surface water use be determined within a two year period between 1 October 1997 and 30 September 1999. This period is called the qualifying period and basically entails that a view is taken of what happened during this period to determine the legality of your current water use. The Department is busy contacting water users to confirm the extent of their current use and determine the legality of this use. Farmers naturally have many questions in this regard and how this use is determined and what their rights are where the Department restricts their current use.

Water Use Certificate

The Water Use Certificate (“Water Use Certificate”) is often the major culprit in disputes with the Department since many farmers believe this certificate is the “title” of their water use. In reality, this certificate means nothing when it comes to determining the legality of water use. The Department about a decade ago began inviting water users to submit their water use in order to enable the Department to get a rough indication of the volumes of use and which crops where being grown. The Department then issued a certificate to everyone which merely documented this communication to the Department. At the bottom of each of these certificates it is clearly stated that the certificate does not determine the legality of the water use.

Limitation on the term of use

Historically, there was no limit on the period of water use and water use rights were basically seen as a perpetual right connected to the property. The Act brought an end to this perpetual use and now limits licenses issued to a maximum term of 40 years. What now often happens is that the term of use after the issuance of a new license following the transfer of water use rights is limited to a term of 10 years. Farmers should regularly appeal against these licenses as it is not possible to develop on such limited terms.

Emphasis on empowerment

The Department was recently reprimanded by the Court in Makhanya NO v Goede Wellington Boerdery (Pty) Ltd & Another where the Department made empowerment a prerequisite for the granting of a license. The Court found that empowerment was only one of the factors that should be taken into account when granting licenses. Yet it would appear that, despite this ruling, empowerment still strongly considered by the Department in the awarding of licenses.

Water Tribunal suspends its operations

The Water Tribunal was created by the Act to hear appeals against decisions of the Department and to remedy incorrect action by the Department. The functioning of the Tribunal has been suspended since mid-2012 due to the resignation of the presiding officer with no subsequent suitable replacement being appointed to date. It now appears that the Legislature is underway to amend the Act to address this problem. Meanwhile appeals to the Tribunal are being delayed with a multitude of appeals allegedly standing still.

It is clear from the above that the path of a water user at the moment is not straightforward and that there are many potential pitfalls. However, it is important that water users stand on their rights and make use of the Act’s provided protection. The Act provides water users the right to in appropriate circumstances make use of mediation, arbitration, the Water Tribunal and ultimately the Courts to protect their interests. It is also important that farmers themselves become far more acquainted with the conditions and procedures established by the Act to ensure that they are proactive when their water rights are threatened.

September 30, 2013

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