Your Constitutional Rights

The South African Constitution and our Water Source Areas

Section 24(b) of the Constitution provides that “everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation [and] promote conservation” As an important element of our natural environment towards which government has a Constitutional obligation, section 27(1)(b) of the Constitution provides that “everyone has the right to access to water” and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.”



Furthermore, both the National Water Act and the National Environmental Management Act provides that the state holds water resources, and the environment, in public trust for the people. Section 3 of the National Water Act provides that the Minister is the public trustee of the nation’s water resources, and that the Minister must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its Constitutional mandate. Section 2(4)(o) of the National Environmental Management Act provides that “the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.”

 

 

Government has indeed succeeded in drafting commendable, environmentally sound legislation which gives effect to its Constitutional mandate highlighted above. However, further to this is government’s constitutional mandate to take broader, more practical steps (i.e. other measures) towards progressively realising these rights. A strategic and necessary step during a time in which South Africa is facing a drought and many of its areas are being declared drought disaster zones, coupled with the fact that water is a scarce commodity which is irreplaceable in nature, it has become increasingly important that the relevant Ministers prioritise the protection of our water source areas. Since comprehensive scientific research and assessment have shown that water source areas are essential for the realisation of these rights, taking steps to protect them is a Constitutional imperative.



 

ENVIRONMENTAL RIGHTS (SECTION 24b)

• Everyone has the right to an environment that is not harmful to their health or wellbeing.
• The environment should be protected for the benefit of present and future generations through reasonable measures:
- to prevent pollution and damage to natural resources;
- to promote conservation; and
- to ensure that natural resources are developed, while also promoting the justifiable economic and social development of people.
 

WATER RIGHTS (SECTION 27(1)(b))

The right to clean water and sanitation is a fundamental human right that is provided for in the bill of rights.

Who is responsible for delivery of water and sanitation services?
There is a duty on all spheres of government to ensure that water and sanitation services are provided in a manner which is efficient, equitable and sustainable. All spheres of government must strive to provide water supply and sanitary services sufficient for subsistence and sustainable economic activity.

The role of government is that:
• National government must manage water resources through various water boards;
• Municipalities are responsible for the delivery of water and sanitation services and must draw up plans for delivery. These plans must take into account effective delivery services to informal communities;
• Our law recognises that due to lack of resources government cannot provide these services to everybody immediately. However, the government must have a clear plan with timeframes and budgets to provide these services and increase access;
• Government must do so without trade-offs of other basic rights.
 

National Water Act

WATER AND SANITATION DRAFT BILL

The National Water Act currently does not have a tool that allows the Minister of Water & Sanitation to protect an area that is important for water security and supply. The Department of Water and Sanitation is in the process of preparing a draft bill for water and sanitation in South Africa. If the draft bill is passed by Parliament, it will replace the National Water Act. This presents an opportunity for law-makers to create legal provisions for the protection of water source areas There are 3 options available for legal reform under the National Water Act, particularly:

  1. A declaration provision which gives the Minister the power to restrict or prohibit certain water use activities within a water source area to be defined in the declaration, through prohibiting or restricting the issuing of water use licences in that area. In this option, the exact prohibition or restriction for that area would be prescribed in the declaration for each water source areas;
  2. An expansion of the definition of a “watercourse” to include water source areas, and the regulation of activities within water source areas by declaring water use activities in a water source area as “controlled activities”; or
  3. An introduction of a new Chapter in the amended National Water Act dedicated to water source area protection, which defines water source areas, and with immediate effect, provides certain general prohibitions and restrictions with regard to the main threatening activities within them.

There would be much value to commencing a process of amending the National Water Act to empower the Minister of Water & Sanitation to identify geographical areas in which no water use may be authorised, by way of general authorisation, water use licence, or otherwise, subject to conditions. This would be particularly necessary if section 26(1)(g) National Water Act regulations do not provide adequate legal protection for water source areas. Such an amendment can also include an express provision that requires other organs of state to consider implications for water source areas in decisions made under other statutes.


Read more here : https://water.cer.org.za/legal-toolbox/formal-protections-mechanisms/national-water-act