<h2>Introduction</h2>
For almost 30 years, South Africa has been grappling with the aftermath of Apartheid racial discrimination and the complex task of implementing transformation through both social and economic reforms. One such new proposal within the water sector has highlighted not only the difficulties, fears, and potential dangers inherent in transformation policies; but also demonstrates the necessity of transformation in the water sector to avoid an arduous future for all.
This article discusses the proposed new transformation requirement and how current policy conditions have led to little change from the pre-1994 racial imbalances in the large-scale use and distribution of water in South Africa. In addition, the pressing need to consider effective transformation policies will be highlighted, followed by some recommendations for future action and study.
<h3 dir="ltr">Proposed changes</h3>
In South African law, water is considered a public domain resource that cannot be &lsquo;owned&rsquo; by anyone other than the state, which must administer, control, safeguard and develop this resource in the public interest (Republic of South Africa, 1998, pg.18; Bosch &amp; Gupta, 2022, pg.5). As such, any use of water that exceeds &ldquo;reasonable domestic use,&rdquo; must apply for a water-use licence under the 1998 National Water Act (NWA), in order to legally take, use, store, divert, affect quality and/or construct, operate or maintain works related to water (Republic of South Africa, 1998, pg.20).
On May 19th 2023, the South African Department of Water and Sanitation (DWS) proposed amendments to the NWA, adding requirements to the water-use licence application process, to improve and accelerate the equitable allocation of water resources (Creamer Media (Pty) Ltd, 2023, pg.12). Among the amendments presented, a new race-based transformation requirement would be added to licence applications, which depending on the volume of water in cubic meters (m3) and the area covered in hectares (ha); would require either a 25%, 50% or 75% Black/Historically Disadvantaged Individuals (HDIs) shareholding in the applicants venture for the water-use licence to be awarded (Department of Water and Sanitation - B, 2023, pg.13).
The proposed implementation of racial quotas within the water sector was met with opposition from farmers, agricultural groups, and even the Western Cape provincial government (Bega, 2023; BusinessTech - A, 2023). Those opposed highlighted how making race a central criterion for licences could place South Africa&rsquo;s food security at risk at a time when both commercial and subsistence farmers are already struggling with climate change-driven droughts, rising temperatures, weather fluctuations, water renewal and even crop growing patterns (Ngcuka, 2022). Additionally, the inability of most Black people to afford shareholding stakes in ventures raised concerns over how existing debts for infrastructure linked to the licences would be divided, especially considering existing local and international players in the agriculture sector. These concerns were presented to the DWS alongside a request for further clarification on this proposal (BusinessTech - B, 2023; Bega, 2023). In response, the DWS released a media statement on June 15th 2023, in which it said:
&ldquo;The transformation requirements categories as envisaged in the current review of Regulations are only applicable to applications for new water-use licences and are not applicable to renewal of existing water-use licenses&rdquo; (Department of Water and Sanitation - C, 2023).
The statement went further, clarifying that at current estimates around 98.5% of available water resources in South Africa &mdash; the remaining water after the reserves for basic human needs (drinking water, hygiene) and ecological needs to maintain the aquatic ecosystem (Republic of South Africa, 1998, pg. 30) &mdash; have already been allocated and the new transformation requirements would only apply to new licence applications for the remaining 1.5% of available water (Department of Water and Sanitation - C, 2023).
Thus, practically no significant transformation in water use would occur from these proposed race-based quotas despite evidence that large-scale and effective transformation is not only desired but needed to effectively address the poverty, inequality, and unemployment challenges faced by South Africa.&nbsp;
<h3 dir="ltr">Status Quo of South African Water-use</h3>
As it stands today, the majority of water in South Africa, an estimated 77%, comes from surface water running in rivers which is generated from an estimated 8% of South Africa&rsquo;s land area (UNESCO, 2006, pg.502; Colvin et al., 2013; Smith-Adao, 2018). This reliance on surface water can be seen in the distribution of water use, with agriculture (including afforestation and livestock watering) being the largest user accounting for 66%, while municipal and domestic uses shape 27% (The Department of Water and Sanitation - A, 2023, pg.15). The remaining 7% of total yearly water usage is utilized in power generation, mining and bulk industrial activities (The Department of Water and Sanitation - A, 2023, pg.15).
Historically, due to the Apartheid race-based policies, the majority of land and water rights were granted to predominately white-male South Africans (Jegede &amp; Pumzile Shikwambane, 2021, pg.3). With the transition into a democratic rule in 1994, new political and legal mandates were created to transform and redress the racial, social, and economic imbalances of the past (Bosch &amp; Gupta, 2020, pg.211; Bosch &amp; Gupta, 2022, pg.7). Transformation efforts played a major role in the formulation and passing of the NWA in 1998, making what would become the DWS the sole custodian of all water resources in South Africa, with the mandate to protect and manage water in the public interest (Republic of South Africa, 1998, pg.18; Bosch &amp; Gupta, 2020, pg.210). Among the host of changes that the NWA brought into effect, were two broad policy concepts aimed to manage water use and its stable reallocation to address the need for racial transformation.
The first is that all water use over a certain limit in volume and/or area, as determined by the DWS and its Minster, would require the application for a water-use licence (Republic of South Africa, 1998, pg.42). The licencing process would consider several factors such as the intended use of the water, its class and quality, the strategic importance, investments already made, the socio-economic impact, and the need to redress the aftermath of past racial and gender discrimination (Republic of South Africa, 1998, pg.44). If accepted, the licence would be granted for 40 years and reviewed every five years (Republic of South Africa, 1998, pg.44).
The second broad policy decision made was that all &ldquo;Existing Lawful Water Use&rdquo; that occurred under the previous Apartheid 1956 Water Act &mdash; within two years (1996) of the passing into law of the NWA in 1998 &mdash; would be entitled to continue without change or a licence, until such as time as new compulsory water-use licence regulations are introduced (Bosch &amp; Gupta, 2020, pg.211; Bosch &amp; Gupta, 2022, pg.5). This policy was adopted as a transitional measure designed to prevent excessive disruption of existing water systems and the sectors that relied on them at the time (Bosch &amp; Gupta, 2020, pg.211).
However, after 30 years, these two broad policy decisions have had the following effects according to various research studies and records from the DWS. Of the nearly 60,000 &ldquo;Existing Lawful Water Use&rdquo; entitlements issued, covering an estimated 5.8 billion m3 of water a year, 98.54% are allocated to White/Historically Advantaged Individuals (HAIs) and only 1.46% have been granted to Black/HDIs (Bosch &amp; Gupta, 2020, pg.212; Creamer Media (Pty) Ltd, 2023, pg.12). Furthermore, of all the issued water-use licences since 2013, 60% of them have been allocated to White/HAI, while only 20% have gone to Black/HDIs, and the remaining 20% going to municipalities or other government entities (The Department of Water and Sanitation - A, 2023, pg.35).
<h3>Why Transformation Must Happen in South Africa?</h3>
This slow rate of transformation can be attributed in part to (Bosch &amp; Gupta, 2020, pg.213):
<ul>
<li>Funding and knowledge capacity shortfalls in the DWS.</li>
<li>The lack of knowledge and financial ability by emerging black farmers to apply for water-use licences.</li>
<li>The absence of coordination between departments responsible for land redistribution, water allocations, and rural infrastructure.</li>
<li>Strong opposition by those with the &ldquo;Existing Lawful Water Use&rdquo; entitlements, to any law changes that could see their &ldquo;rights&rdquo; to water removed or curtailed.</li>
<li>Finally, some of the catchment areas are in a closed state, where all potential water has already been allocated; with a long complex process of comparing potential water-use licence applications needed before any reallocations can occur.</li>
</ul>
These factors and numerous others are all compounded by the fact that South Africa is one of the 30 driest countries in the world, and already experiences high levels of water stress (Bega, 2023; Creamer Media (Pty) Ltd, 2023, pg.20). Experts have warned that a scenario of tight and regular water rationing might become a reality as soon as 2030 with a projected future demand of 63 billion m3 of water a year, significantly greater than the current 38 billion m3 of usable water estimated to be available in South Africa (Creamer Media (Pty) Ltd, 2023, pg.23).
Thus, transformation in the South African water sector is not only necessary to redress the injustices and racial imbalances of the past but is also a necessary element in re-prioritising and managing the increasingly scarce resource that is usable water. The proposed implementation of a race-based shareholding requirement for future water-use licences is not the policy answer needed here in this specific and complex convergence of water, land, infrastructure, economic, and social issues in South Africa.
<h3 dir="ltr">Conclusion</h3>
More in-depth research is needed to balance the social and economic ramifications of a water use policy; one that accelerates the pace of racial transformation and access in South Africa. However, some broad recommendations can be presented (Bosch &amp; Gupta, 2020, pg.214; Bosch &amp; Gupta, 2022, pg.212; Chikozho et al., 2020, pg.231):
<ol>
<li dir="ltr" role="presentation">Water-use licences should be tied to the physical location, such as the farmland itself, in which it will be used and not tied to individuals or enterprises.</li>
<li dir="ltr" role="presentation">The ability to transfer water-use licences from one holder to another should be curtailed or removed entirely. Currently, parties not involved in the initial licence application, nor connected to the initial area to which it would apply, can be granted the water-use licence instead of the new landowners.</li>
<li dir="ltr" role="presentation">The granting of redistributed land to emerging Black farmers should immediately come with a reasonable water-use licence included, to support new agricultural enterprises.</li>
<li dir="ltr" role="presentation">&ldquo;Existing Lawful Water Use&rdquo; entitlements should be explored in depth and reviewed to understand the full economic and social benefits attained from them.</li>
<li dir="ltr" role="presentation">The concept of water licences should also be reevaluated and alternatives considered in light of the considerable administrative burden that it places on both the water sector and the DWS.</li>
</ol>
<hr>
References and suggested readings
<ul>
<li>Bega, S. (2023, June 8). Race-based water licence allocations draw ire of farmers &ndash; The Mail &amp; Guardian. The Mail &amp; Guardian. <a href="https://mg.co.za/news/2023-06-08-race-based-water-licence-allocations-draw-ire-of-farmers/">https://mg.co.za/news/2023-06-08-race-based-water-licence-allocations-draw-ire-of-farmers/</a></li>
<li>Bosch, H. J., &amp; Gupta, J. (2020). Access to and Ownership of Water in Anglophone Africa and a Case Study in South Africa. Water Alternatives, 13(2), 205-224.</li>
<li>Bosch, H. J., &amp; Gupta, J. (2022, September 25). The tension between state ownership and private quasi-property rights in water. WIREs Water, 10(1), 19.</li>
<li>BusinessTech - A. (2023, June 5). Farmers sound the alarm on 'race quotas' for water in South Africa. BusinessTech.&nbsp;<a href="https://businesstech.co.za/news/government/693843/farmers-sound-the-alarm-on-race-quotas-for-water-in-south-africa/">https://businesstech.co.za/news/government/693843/farmers-sound-the-alarm-on-race-quotas-for-water-in-south-africa/</a></li>
<li>BusinessTech - B. (2023, June 9). 'Race quotas' for water in South Africa &ndash; department clears up confusion. BusinessTech.&nbsp;<a href="https://businesstech.co.za/news/business/694839/race-quotas-for-water-in-south-africa-department-responds/">https://businesstech.co.za/news/business/694839/race-quotas-for-water-in-south-africa-department-responds/</a></li>
<li>Chikozho, C., Managa, R., &amp; Dabata, T. (2020, April). Ensuring access to water for food production by emerging farmers in South Africa: What are the missing ingredients? Water SA, 46(2), 225-233.</li>
<li>Colvin, C., Nobula, S., &amp; Haines, I. (2013). An introduction to South Africa&rsquo;s Water Source Areas (E. Prince &amp; S. Nobula, Eds.). WWF South Africa.</li>
<li>Creamer Media (Pty) Ltd. (2023, October). Water 2023: South Africa's Looming Crisis (S. Barradas, D. Shepherd, &amp; R. Theron, Eds.; N. Odendaal, Compiler). Creamer Media (Pty) Ltd.</li>
<li>The Department of Water and Sanitation - A. (2023, March). National Water Resource Strategy III (3rd ed.). The Department of Water and Sanitation.</li>
<li>Department of Water and Sanitation - B. (2023, May 19). The Revision of Regulations Regarding the Procedural Requirements for Water Use Licence Applications and Amendments. Department of Water and Sanitation.</li>
<li>Department of Water and Sanitation - C. (2023, June 15). Media Statement: Clarity regarding Regulations on the Procedural Requirement for Water Use Licence Applications. Department of Water and Sanitation.</li>
<li>Jegede, A. O., &amp; Pumzile Shikwambane, P. (2021, April 16). Water &lsquo;Apartheid&rsquo; and the Significance of Human Rights Principles of Affirmative Action in South Africa. Water, 13(1104).</li>
<li>Ngcuka, O. (2022, October 6). Biggest threat to food security in South Africa is 'lack of subsistence farming' - panel warns. Daily Maverick. Retrieved March 27, 2024, from&nbsp;<a href="https://www.dailymaverick.co.za/article/2022-10-06-biggest-threat-to-food-security-in-sa-is-lack-of-subsistence-farming-panel-warns/">https://www.dailymaverick.co.za/article/2022-10-06-biggest-threat-to-food-security-in-sa-is-lack-of-subsistence-farming-panel-warns/</a></li>
<li>Republic of South Africa. (1998, August 26). National Water Act 1998. In Government Gazette. Parliament of the Republic of South Africa.</li>
<li>Smith-Adao, D. L. (2018). Strategic Water Source Areas of South Africa | CSIR. CSIR. Retrieved March 27, 2024, from&nbsp;<a href="https://www.csir.co.za/strategic-water-source-areas-south-africa">https://www.csir.co.za/strategic-water-source-areas-south-africa</a></li>
<li>UNESCO. (2006). Water, A Shared Responsibility: The United Nations World Water Development Report 2 (J. Treves-Habar, Ed.; G. Young, Compiler). United Nations Educational, Scientific and Cultural Organization (UNESCO).</li>
</ul>

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