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SAICE HOME PAGE / SAICE OPPORTUNITIES, EVENTS & OUTREACH Waterlaw DOWNLOAD THE REGISTRATION FORM Please note: this document is in .pdf format. To view and download some of these documents you will require the latest version of Adobe Acrobat Reader. Please click on the Adobe icon to download the programme Constitutional mandate governing water The law governing water was always regarded as a specialised field, practised only by a small group of lawyers. However, the social and political reform during the last decade of the 20th century, the water-related problems experienced, and the prominence given to fundamental human rights and environment-related matters have significantly increased the need for this knowledge, also by civil engineers. The requirements due to the social reform, the water-related problems, fundamental human rights and environmental-related matters is contained in the constitutional mandate governing water THE WATER PROBLEM FROM A LEGAL PERSPECTIVE In global terms South Africa’s water resources are scarce and extremely limited in extent. This problem is essentially one of conflict between:
These conflicts should be resolved through interventions to ensure that the water resources are protected, used, developed, conserved, managed and controlled to achieve optimum long-term environmentally sustainable, social and economic benefits for the society. An effective framework is necessary to ensure this. This framework should include the provisions of the constitutional mandate governing water. THE CONSTITUTIONAL MANDATE The constitutional mandate governing water gives every person a fundamental right to an environment that is not harmful to his or her well-being, and requires the environment to be protected for the benefit of the present and future generations. The protection should be afforded through reasonable legislative and other measures that secure ecologically sustainable development and use of the water resources, while promoting justifiable economic and social development. Every person has a fundamental right of access to sufficient water. The strate must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. Giving effect to this right could also give effect to the constitutional right that a person has to have his or her dignity respected and protected and to the right to life. There should be a commitment from the nation to bring about equitable access to the water resources. The state may take legislative and other measures to achieve water reform in order to redress the results of past racial and gender discrimination and giving the poor access to water. When giving effect to these rights, the other fundamental rights should be respected, protected and fulfilled. These include the right to:
A person may only be deprived of an entitlement to water, the fruits of the entitlement, or the value that water adds to property, in terms of a law of general application which may not be arbitrary. Expropriation of these may take place in terms of a law of general application for a public purpose or in the public interest subject to compensation. However, these rights are not absolute and may be limited in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into consideration certain factors. An environment that is not harmful Conduct of an organ of the state, a private individual or an organisation violating the right to a person’s health and wellbeing may be challenged. Further, if the state fails to take legislative and other steps to protect the environment, the state could be forced to comply. This right covers the conservation of the aquatic ecosystems and riparian habitat. Certain aspects of the environment merit protection purely for aesthetic reasons. It includes spiritual or psychological aspects such as the individual’s need to be able to commune with nature and to use the water for religious or spiritual purposes such as baptising. Sustainable development should be understood that it takes place in a way that allows the water resources to re-accrue. Water resources should therefore be exploited in such a way that they will be able to sustain human, plant and animal life over the longest possible period. A positive duty is placed on the state to protect the environment, which must be achieved by legislation and administrative measures. Administrative measures include a wide field of measures. The goal of these should be to prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of the water resources, while promoting justifiable economic and social development. There is a duty on the state to monitor and regulate those activities that are or are likely to be harmful to water resources and to ensure that there is sufficient water to maintain the ecological integrity of the country’s water resources, and that water conservation and sustainable, justifiable economic and social development are promoted. A balance should be struck between environmental protection and development that is sustainable. The state has to play a role here to ensure that effective legislation is in place and that it is enforced. This has already occurred with the enactment and application of for example the National Environmental Management Act 107 of 1998 and the National Water Act 36 of 1998. Access to sufficient water The right of a person to have access to sufficient water is a component of an adequate standard of living and should also include water of sufficient quality and assurance of supply. The right might be more than only water to support life and personal hygiene. Further, this right exists independently from the right to basic water supplied in terms of the Water Services Act 108 of 1997 and could even be more than that right. It is unlikely that the right would include the use of water for productive or commercial purposes. The state and courts will have to lay down guidelines on what exactly sufficient water entails, taking into consideration the different needs to develop communities and eradicate poverty, the fact that water is scarce (other resources also) and that the right is a socio-economic right. It will probably have to be determined on a case-by-case scenario and could even change over time. The emphasis up to now was mainly to support life and personal hygiene. The right is one of ‘access to’ sufficient water and not a right to ‘adequate water’. This right does not mean provision of water in all households or for all undertakings, but at least access by all persons to long-term sustainable provision of a level of water supply, and a basic minimum, potable water supply close to all households. Appropriate education in respect of effective water use should also be included. In order to achieve sustainable access to water services in the long term, the following are necessary to install, operate, maintain and use the necessary infrastructure to provide the services: Equipment, technical and management skills. And for that, financial resources are needed and are in certain cases the critical element. The extent of the state’s duties differs according to the economic resource available to the different sectors of the population. Those with sufficient economic means already have access to sufficient water as they could afford to pay water services providers to provide it to them. The different spheres of government should therefore direct their attention to those without the necessary means and without access to water. In respect of the responsibilities of the various spheres of government, the Constitutional Court stated that all levels of government must ensure that the … programme is reasonably and appropriately implemented. It also stated that every step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate services. The court stayed away from delineating the responsibilities of the various spheres of government and emphasised the principles of co-operative government. ‘Each sphere of government must accept responsibility for the implementation of particular parts of the programme but the national sphere … must assume responsibility for ensuring that laws, policies, programmes and strategies are adequate to meet the state’s ... obligations. In particular, the national framework … must be designed in order for these obligations to be met. It should be emphasised that national government bears an important responsibility in relation to the allocation of national revenue to the provinces and local government on an equitable basis.’ Therefore a right of access to sufficient water places a distinct responsibility on national government to ensure that its water delivery programmes enable local governments to deliver potable water services with the necessary support from the provincial government. A considerable margin of discretion should be given to the state in deciding how it should go about fulfilling this right. The Constitutional Court stated as follows:
Reasonableness standard is not defined, despite the pivotal role it plays. Instead the Constitutional Court emphasises that ‘reasonableness must be determined on the facts of each case’. The measures should not overlook those most in need. Such an omission will be unreasonable and it would also be in conflict with the other constitutional obligations ‘to respect human dignity’ and ‘the right to equality’. The capacity of organisations involved to ensure access to sufficient water must also be taken into account in determining the reasonableness of the legislative and other measures. The Constitutional Court held that what constitutes reasonable must be determined in light of the fact that the constitution created a three-sphere government. The court went on to say that ‘a reasonable programme therefore must clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available’. Whereas national, provincial and local governments share the function of water provisions a co-ordinated state programme must be a comprehensive one determined by all three spheres of government in consultation with each other. Provincial and local governments need not have their own programmes but should be in a position to contribute to the administration of national programmes under assignment or delegation from the national government. The court emphasised that the national government bears an important responsibility in relation to the allocation of national revenue to the province and local government on an equitable basis. The positive obligation to realise the right is further qualified by obliging the state to take only those steps within its available resources to achieve the ‘progressive realisation’ of the right. The fact that the full realisation of the right can only be achieved progressively does not alter the obligation on the state to take those steps that are within its power immediately and other steps as soon as possible. The duty to provide access to sufficient water could also be applicable to private persons. Whether there is such a duty would depend on, for example, the provisions of a contract between the water services authority, who has such a duty in terms of the Bill of Rights, and the private water services provider, who provides water services on behalf of the water services authority. It could also be by implication, for example, where labourers reside on a farm and the owner of the farm provides housing to them as part of the employment conditions. These conditions could also imply that water will be provided. Giving effect to this right has already occurred with the enactment and application of, for example, the Water Services Act 108 of 1997, the Local Government: Municipal Structures Act 117 of 1998, and the Local Government: Municipal Systems Act 32 of 2000, as well as the strategies, programmes and plans developed to give effect to these Acts. CONSTITUTIONAL REQUIREMENTS FOR IMPLEMENTING THE FRAMEWORK Implementing the framework governing water could result in that certain persons or categories of persons should take measures or curtail or stop their activities or that certain entitlements to water or other rights are deprived, extinguished, allocated or re-allocated. The decision-makers should ensure that they comply with the equality and protection of property clauses of the Bill of Rights when they make any decision regarding this. The decisions should also be lawful, reasonable and procedurally fair if they could adversely affect rights. Equality The constitution grants two constitutional rights to equality. These are that all persons are equal before the law and have a right to equal protection and benefit of the law and non-unfair discrimination. This right is more than similar treatment. A decision should ensure equality. It would for example not be sufficient to provide for disabled persons the same access to water than for able persons. A commitment to equality requires that special watering facilities or programmes should be created which take into account the particular needs of the disabled persons. It is not enough to treat all groups and individuals in the same manner regardless of their circumstances. However, the provisions of the right do not prevent the state from making a classification and from treating persons differently. This is because the principle of equality does not require that all persons should be treated the same, but only that persons in the same position should be treated the same. Therefore persons could be classified and treated differently from others for a variety of legitimate reasons. Differentiation is permissible as long as it does not deny equal protection or benefit of the law, or does not amount to unequal treatment under the law. A decision will violate the right if the differentiation does not have a legitimate purpose and if there is no rational connection between the differentiation and the purpose for the differentiation. The reasons given for a decision that differentiates should therefore be evaluated to determine whether the purpose of the decision is legitimate. There should be a rational relation between the purpose of the decision and the differentiation imposed by the decision. For example, if the purpose of a decision is to protect the water resources, it could be rational (or reasonable) to impose stricter restrictions on the persons abstracting water for industrial purposes and thereby generating waste that could impact detrimentally on the water resources than on persons abstracting water for irrigation purposes. It could also be rational to reduce an existing lawful water use relating to a stream flow reduction activity differently than for taking water from a water resource for irrigation. The reason being that it may be a more costly and disturbing exercise to cut down trees than closing down part of the irrigation so as to make the same amount of water available. The same could apply between irrigating cash and permanent crops. Property If a decision might result in that restrictions are placed on how an activity should be carried out or that the activity could not be carried out anymore, a due process should be followed to ensure that it is a deprivation and not an expropriation. If it is an expropriation, compensation is payable for that. The test prescribed by the Constitutional Court when determining whether a specific deprivation is arbitrary, is extremely comprehensive. A deprivation will be arbitrary if it is procedurally unfair, or if the provision under adjudication does not provide adequate reasons for the deprivation concerned. Whether there are adequate reasons is determined by a weighing up of the nature and scope of the encroachment and the desired objective; a comparison of the relationship between the objective of the encroachment and the individual's property that is affected; and a comparison between the nature of the property and the scope of the encroachment. A due process therefore has two functions. It firstly recognises the fact that some decisions could interfere with private rights in property and that is unavoidable. It therefore permits such interferences. Secondly, it prescribes the requirement that the permissible interferences must conform with proper legal procedures. A decision-maker should exercise his or her powers in terms of clear rules and principles set out in advance. The exercising of power is arbitrary where it does not follow rules or principles. Therefore, if a discretionary power of deprivation of property is conferred by legislation, that power will be arbitrary if there are insufficient or inadequate legal criteria to govern how it is exercised. If a decision-maker differentiates between individuals or groups of individuals, it should be done in a manner that is rational and not arbitrary. An attempt to impose a limitation of a right on a single person or group of individuals, as opposed to a similar limitation across-the-board on a category of users could well be held to be arbitrary and unreasonable. Administrative actions All administrative actions should be lawful, reasonable and procedurally fair. Furthermore, a person whose rights have been adversely affected by an administrative action has the right to be given reasons. An administrative action is a decision taken, or a failure or refusal to take a decision, which adversely affects the rights of a person and has a direct, external legal effect. In the case of, for example, processing a licence to use water, it will also include decisions regarding the taking into account of the relevant factors when deciding whether a licence should be issued or not. It includes also the case if a person applies for a license the first time and the issuing of the licence is refused, provided the refusal affects a right of the person adversely. Lawfulness means that decision-makers should obey the law and have authority in the law for their decisions. Evaluating the reasonableness of an administrative decision does not mean that the court should determine whether the decision is correct or not or that the court should agree with the decision. The court should find a set of reasons for the decision that would convince someone that the decision was reasonable. The justifiability of an administrative action should be directed towards the soundness of the process followed for taking the decision, rather than towards the content of the decision. The Promotion of Administrative Justice Act 3 of 2000 provides the detail as to the procedure to be followed before an administrative action could be taken. Various powers exercised in terms of the National Water Act and the Water Services Act could be administrative actions and should therefore comply with the above. Enquiries can be made to Sharon: Tel: (011) 805 5947/8/53 Fax: (011) 805 5971 OR e-mail: [email protected] e-Mail Carla de Jager |
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