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10.17 Some legal aspects of water in South Africa*
The Water Act No. 54 of 1956 was originally aimed at controlling the use of water for
agricultural requirements. According to Perkins (1993), the Act despite numerous
amendments, remains largely agricultural with no legal provision for instance, of water for
environmental needs (a serious omission)* * . The Water Act however, is in the process
of being extensively revised, with a much reduced emphasis on agricultural requirements.
Industrial and domestic as well as environmental demands will receive preference. Besides
the Water Act, over 30 other secondary and afew primary Acts also apply to water issues
in South Africa (see the chapter on the laws of South Africa, elsewhere in this publication).
Rationalization of the minor Acts in particular, is necessary. Water in South Africa (in
terms of the Water Act) can be divided into two main categories, namely, public and
private water.
10.17.1 Public and private water
Public water is water found in a public stream, which is defined as a natural stream
flowing in a known and defined channel. The water can be commonly used for irrigation
on two or more parcels of land which are riparian to the stream, where the parcels of land
are the subject of separate original grants, or on one such piece of land, and also on State
land which is riparian to the stream. If there is douiJt as to whether the water is private
. or public, it is advisable to regard the water as public until proven otherwise by a Water
*
**
Discussion based on Perkins, J.C., 1993. The water user and the Water Act (Act 54 of 1956), South
African Institution of Civil Engineers Lecture Course, 8 September 1993, University of the
Wrtwatersrand, Johannesburg, 12 p. (Note: The above discussion is greatly simplified). See also,
Anonymous, 1986. Management of the Water Resources of the Republic of South Africa,
Department of Water Affairs, Pretoria, various pages, as well as O'Keeffe, J.H., Uys, M. and 8ruton,
M.N., 1992. Chapter 13. Freshwater systems, In: Fugg/e, R.F. and Rabie, M.A. (eds), Environmental
Management in South Africa, Juta, Cape Town, p. 277 - 315. (See in addition, Chapter 25. Rivers,
p. 647 - 668). A useful overview reference is the following: Visser, F., 1989. Water: laws and
management, Southern African Journal of Aquatic Sciences, VOl 15(2) (stated as VOl 16(2) in the
paper), p. 159·181. A plain-text summary of the Water Act can be found in Anonymous, 1995.
You and your water rights: South African law review - a call for public response, Department of Water
Affairs and Forestry, Pretoria, 30 p.
A useful legal perspective is the following: Uys, M., 1992. Statutory protection for the water
requirements of natural ecosystems, Koedoe. VOl 3511}, p. 101 - 118. See also, Uys. M., 1996.
A structural analysis of the water allocation mechanism of the Water Act 54 of 1956 in the light of
the requirements of competing water user sectors, with special reference to the allocation of water
rights for ecobiotic requirements and the historical development of the South African water law,
VOl 1, WRC Report No. 40611/96, and VOl 2, WRC Report No. 40612196, 793 p.. Water Research
Commission, Pretoria.