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Abstract
South Africa is a semi-arid country that increasingly relies on groundwater as a freshwater source for both socio-economic and environmental systems. Groundwater resources are, however, limited and fragile due to factors such as climate change, exploitation and pollution. This renders the groundwater regulatory framework essential. Yet in South Africa, groundwater governance is not strongly emphasised in the novel regulatory framework instated by the National Water Act 38 of 1998 (the NWA). Naturally, uncertainties and challenges arise as to, inter alia, the appropriate allocation and effective protection of the country’s groundwater resources. This paper traces established groundwater governance practices and critically reflects on how the concept of public trusteeship, as introduced by the NWA, changes and informs the country’s groundwater governance practices.
Notes
1 Water is essential for people, plants and animals to survive on earth. Water is further vital for, inter alia, health, hygiene and sanitation, as well as responsible socio-economic growth. Damon Barrett and Vinodh Jaichand, ‘The Right to Water, Privatised Water and Access to Justice: Tackling United Kingdom Water Companies’ Practices in Developing Countries’ [2007] 23(3) South African Journal of Human Rights 561; Ben Crow and Farhana Sultana, ‘Gender, Class and Access to Water: Three Cases in a Poor and Crowded Delta’ [2002] 15(8) Society & Natural Resources: An International Journal 709; David Seckler, Randolph Barker and Upali Amarasinghe, ‘Water Scarcity in the Twenty-First Century’ [1999] 15(1–2) International Journal of Water Resources Development 15; Hubert Thompson, Water Law: A Practical Approach to Resource Management & the Provision of Services (JUTA 2006) 3.
2 United Nations Committee on Economic, Social and Cultural Rights (CESCR), General Comment 15, The Right to Water, Articles 11 & 12 of the Covenant, 20 January 2003.
3 Food and Agriculture Organisation of the United Nations (FAO), ‘Water Scarcity Is One of the Greatest Challenges of Our Time’ (FAO, 22 March 2019) www.weforum.org/agenda/2019/03/water-scarcity-one-of-the-greatest-challenges-of-our-time accessed 3 April 2020.
4 Kevin Pietersen, Hans Beekman and Martin Holland, South African Groundwater Governance Case Study (2011) WRC Report No. KV 273/11 4.
This article has been republished with minor changes. These changes do not impact the academic content of the article.
5 Sheila Barradas, David Shepherd and Ria Theron (eds), Water 2012: A Review of South Africa’s Water Sector (Creamer Media’s Water Report 2016) 14; Dube Lawrence, ‘Climate of Southern Africa’ [2002] 84 South African Geographical Journal 125; Amy Fallon and others, ‘Agricultural Groundwater Management Strategies and Seasonal Climate Forecasting: Perceptions from Mogwadi (Dendron), Limpopo, South Africa’ [2018] 10(1) Journal of Water and Climate Change 142.
6 For example, in January 2018, it was announced that Cape Town (a South African metropole) was three months away from running out of municipal water. Labelled ‘Day Zero’, 12 April 2018 was to be the date of the largest drought-induced municipal water failure in modern history. The Metropole imposed strict water restrictions and throttled allocation of water in certain regions. For now, Cape Town evaded a disaster. Alexander Christian, ‘Cape Town’s “Day Zero” Water Crisis, One Year Later’ (City Lab, 12 April 2019) www.citylab.com/environment/2019/04/cape-town-water-conservation-south-africa-drought/587011/ accessed 20 March 2020.
7 Conflicts are largely associated with protest action over water shortages and poor infrastructure. In fact, violent actions were observed in 2018 when Cape Town faced its ‘Day Zero’. According to news reports, a fight broke out between residents lining up to collect water from the Newlands Spring. Sarah Smit, ‘Water “Wars” Wash Over the World’ (Mail & Guardian, 10 January 2020) https://mg.co.za/article/2020-01-10-00-water-wars-wash-over-the-world/ accessed 25 May 2020; see also Peter Gleick, ‘Water and Conflict: Fresh Water Resources and International Security’ [1993] 18(1) International Security 79.
8 Particularly during South Africa’s dry seasons, groundwater abstraction rates drastically increase to ensure water supply and to mitigate fluctuations in the supply of water. Devi Tewari, ‘South Africa’ in Paul Pavelic and others (eds), Groundwater Availability and Use in Sub-Saharan Africa: A Review of 15 Countries (International Water Management Institute 2012) 184; The World Bank, ‘Hidden and Forgotten: Managing Groundwater in Southern Africa’ (2017) www.worldbank.org/en/news/feature/2017/06/07/hidden-and-forgotten-managing-groundwater-in-southern-africa accessed 29 January 2020.
9 Groundwater is part of the natural water cycle. Groundwater is fresh water contained in aquifers beneath the land surface. Charles Fitts, Groundwater Science (Elsevier 2002) 1.
10 As will be indicated in section 2.1, South Africans have been dependent on groundwater for centuries. More recently, in 2018, the City of Cape Town drilled a borehole into the Cape Flats aquifer after the dams in the town went dry as a result of the drought. Nita Katume, ‘The City of Cape Town Starts Drilling First Borehole into the Cape Flats Aquifer’ (Construction Review Online, 12 January 2018) https://constructionreviewonline.com/2018/01/city-cape-town-starts-drilling-first-borehole-cape-flats-aquifer/ accessed 25 May 2020.
11 Groundwater is used extensively in arid regions, such as the Karoo. Scholars acknowledge the importance of groundwater in times of drought by labelling groundwater a ‘natural buffer against climate variability’. Divan Stroebel, Christien Thiart and Maarten de Wit, ‘Towards Defining a Baseline Status of Scarce Groundwater Resources in Anticipation of Hydraulic Fracturing in the Eastern Cape Karoo, South Africa: Salinity, Aquifer Yields and Groundwater Levels’ [2018] 479 Geological Society 129; Maya Velis, Kirstin Conti and Frank Biermann, ‘Groundwater and Human Development: Synergies and Trade-Offs within the Context of the Sustainable Development Goals’ [2017] 12 Sustainability Science 1010.
12 Fallon and others (n 5).
13 Jay Famiglietti, ‘The Global Groundwater Crisis’ [2014] 4 Nature Climate Change 945; Pietersen, Beekman and Holland (n 4) 51; Leonard Konikow and Eloise Kendy, ‘Groundwater Depletion: A Global Problem’ [2005] 13 Hydrogeology Journal 317.
14 Pietersen, Beekman and Holland (n 4) 47.
15 The author hereof acknowledges that the notion of sustainability is broad and contested. Due to the focus and scope of this paper, the notion is not comprehensively discussed. However, in order to understand sustainability as used in this article, a brief note on the topic is necessary. In the year 1992, at the United Nations (UN) Conference on Environment and Development (Earth Summit in Rio de Janeiro), member states opted for a global partnership in protecting the environment. Member states adopted the intergenerational concept of sustainable development. This concept captured the interrelated dimensions of economic development, social inclusion and environmental sustainability. The three-part vision of sustainable development was emphasised at the 2012 UN Conference on Sustainable Development (Rio+20) and led to the negotiation and adoption of the UN 2030 Agenda for Sustainable Development in the year 2015. The international community’s commitment to sustainability, especially in the water sector, is demonstrated by the fact that the UN 2030 Agenda dedicated one of its 17 Sustainable Development Goals (SDGs) solely to its promotion: SDG 6 sets out to ensure the ‘availability and sustainable management of water and sanitation for all’. Adil Najam, ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’ [2005] 5 International Environmental Agreements 309; Resolution A/Res/70/1 adopted by the General Assembly on 25 September 2015; Sustainable Development Goals Knowledge Platform, ‘Sustainable Development Goals’ https://sustainabledevelopment.un.org/?menu=1300 accessed 18 December 2019.
16 See section 2 of the National Water Act 36 of 1998.
17 Gerrit Pienaar and Elmarie van der Schyff, ‘The Reform of Water Rights in South Africa’ [2007] 3(2) Law Environment and Development Journal 181.
18 Long title of the NWA.
19 Thomas Merrill and Henry Smith, ‘What Happened to Property in Law and Economics’ [2001] 111(2) Yale Law Journal 357.
20 Harvey Jacobs (ed), Private Property in the 21st Century: The Future of an American Ideal (Edward Elgar 2004) 1.
21 Richard Barnes, Property Rights and Natural Resources (Hart Publishing 2009) 3.
22 Section 3 of the NWA.
23 Ibid.
24 Elmarie van der Schyff, ‘Unpacking the Public Trust Doctrine: A Journey into Foreign Territory’ [2010] 13(5) PER 124.
25 The concept of public trusteeship challenges the concepts of ‘property’ and ‘ownership’ in South African jurisprudence; see ibid.
26 Iain Currie and Johan de Waal, The Bill of Rights Handbook (Juta 2013) 537; Hanri Mostert, The Constitutional Protection and Regulation of Property in South African and Germany (Springer 2002) 1.
27 Extensive political negotiations started in the year 1990 with the unbanning of liberation movements. A four-year transition period culminated in South Africa becoming a democratic country on 27 April 1994.
28 Devi Tewari, ‘A Detailed Analysis of Evolution of Water Rights in South Africa: An Account of Three and a Half Centuries from 1652 AD to Present’ [2009] 35(5) Water SA 693.
29 David Ault and Gilbert Rutman, ‘The Development of Individual Rights of Property in Tribal Africa’ [1979] 22(1) Journal of Law and Economics 164.
30 Bastien Linol and others, ‘Earth Stewardship Science – Transdisciplinary Contributions to Quantifying Natural and Cultural Heritage of Southernmost Africa’ [2020] 12(3) Remote Sensing 5.
31 Loretta Feris, ‘The Public Trust Doctrine and Liability for Historic Water Pollution in South Africa’ [2012] 8(1) Law, Environment and Development Journal 11.
32 Ibid; Tewari, ‘A Detailed Analysis’ (n 28) 695.
33 Linol and others (n 30).
34 Cheri-Leigh Young, Public Trusteeship and Water Management: Developing the South African Concept of Public Trusteeship to Improve Management of Water Resources in the Context of South African Water Law (PhD thesis, University of Cape Town 2014) 20.
35 Tewari, ‘A Detailed Analysis’ (n 28) 695.
36 HR Kahlo and Ellison Kahn, The South African Legal System and Its Background (Juta 1968) 566–575; Andries van der Walt, Die ontwikkeling van houerskap (LLD Thesis of Potchefstroom University for CHE, 1985).
37 PJ Badenhorst, Juanita Pienaar and Hanri Mostert, Silberberg and Schoeman’s The Law of Property (LexisNexis 2006) 6.
38 Groundwater was generally regarded as res in commercio and governed in terms of the property law doctrine of cuius est solum eius est usque ad coelom et ad inferos, provided it was not a source of flowing or running water. Thompson (n 1) 19.
39 The doctrine of state ownership or state control or the dominus fluminis principle appears to have been generally accepted, as inherited from the works of the Roman-Dutch writers of the seventeenth and eighteenth centuries. State control in the Cape was, however, mainly exercised over surface water. Andries Maasdorp, The Introduction to Dutch Jurisprudence of Hugo Grotius (Juta 1903) 43; Thompson (n 1) 34.
40 In terms of the cuius est solum maxim, the land owner owned all that was on the surface or below it, and the space above his or her land. Cornie van der Merwe, Sakereg (Butterworths 1979) 31.
41 Groundwater regulation is hardly presented in Roman-Dutch literature, and the reason is obvious if one considers the abundant surface water resources of the Netherlands; Thompson (n 1) 27.
42 Gerrit Pienaar, ‘Die ruimtelike aspek van eiendomsreg op onroerende goed – die cuius est solum beginsel’ [1989] 52 THRHR 216, 220.
43 John Milton, ‘Ownership’ in Reinhard Zimmerman and Daniel Visser (eds), Southern Cross Civil Law and Common Law in South Africa (Juta 1996) 671.
44 Ibid.
45 PJ Badenhorst, Juanita Pienaar and Hanri Mostert, Silberberg and Schoeman’s The Law of Property (5th edn, Butterworths 2006) 92.
46 London and SA Exploration Company v Rouliot [1891] SC [91].
47 Retief v Louw [1874] 4 Buch 165; the Retief case was decided in 1856 but was only reported in 1874.
48 In the Retief v Louw case, the downstream owner sued the upstream owner, who had diverted the whole of the stream’s summer flow and thus deprived the downstream owner of water for drinking purposes and irrigation.
49 The doctrine of riparian ownership later became a foundational concept upon which the whole edifice of South African water rights was founded. Cyril Hall, The Origin and Development of Water Rights in South Africa (University Oxford Press 1939) 32.
50 In effect, Bell J established a system of ‘proportional sharing’ by stating that ‘landowners have each a common right in the use of water which, at every stage of its exercise by any one of the proprietors, is limited by a consideration of rights of other proprietors’. Similarly, in Vermaak v Palmer, Smith J held that the upper owner was not entitled to the unlimited enjoyment of the water rising on the land. Vermaak v Palmer [187]6 6 Buch [25]; CJ Hall and AP Burger, Hall on Water Rights in South Africa (Juta 1974) 47; Tewari, ‘A Detailed Analysis’ (n 28) 697–698.
51 Thompson (n 1) 45.
52 Vermaak v Palmer [1876] 6 Buch [25].
53 Ibid.
54 Ibid.
55 Hiscock v De Wet [1881] Buch AC [249].
56 This principle affirmed a strong link between groundwater and land use.
57 Hough v Van der Merwe [1874] 4 Buch [148].
58 De Villiers CJ determined that
[…] the owner of the land by or through which a public stream flows, is entitled to divert a portion of the water for the purposes of irrigation, provided – firstly, that he does not deprive the lower proprietors of sufficient water for their cattle and for domestic purposes; secondly, that he uses no more than a just and reasonable proportion of the water consistently with similar rights of irrigation in the lower proprietors; and thirdly, that he returns it to the public stream with no other loss than that which irrigation has caused.
59 Van Heerden v Wiese [1880] Buch AC [5].
60 Ibid.
61 Struben v Cape Town District Water Works Co [1892] 9 SC [68].
62 Thompson (n 1) 47; Struben v Cape Town District Water Works Co [1892] 9 SC [75].
63 Notably, therefore, the law distinguished between groundwater in defined and undefined channels in assessing the legal status thereof. Thompson (n 1) 49.
64 De Bruijn v Louw [1905] ORC [11].
65 Thompson (n 1) 49. Notably, in Snijman v Boshof [1905] ORC [1], the view was again applied that the cuius est solum maxim was not accepted for groundwater. The court held that private groundwater ‘was practically the property of the landowner, though as a matter of law that may not be so’.
66 In terms of the South Africa Act of 1909, the Union of South Africa was established in 1910.
67 The legislature in the Cape Colony passed the Right of Passage of Water Act 24 of 1876, the Right of Passage of Water Act 26 of 1882, the Irrigation Act 8 of 1877 and the Water Act 40 of 1899. While the initiative regarding the promulgation of irrigation legislation came from the Cape Colony, other governments in South Africa followed the Cape’s example (except the Republic of the Orange Free State, which produced no comprehensive water legislation and continued to apply the common law). Irrigation legislation was codified in the Natal Colony and included the Irrigation Act 26 of 1887 and the Irrigation Act 26 of 1891. The legislature of the Zuid-Afrikaanse Republic also promulgated their Irrigation Act 11 of 1894.
68 Hall and Burger (n 50) 6.
69 The common law doctrines of riparian ownership and the categorisation between public and private water were thereby enacted. Michael Kidd, ‘South Africa: The Development of Water Law’ in Joseph Dellapenna and Gupta Joyeeta (eds), The Evolution of the Law and Politics (Springer 2009) 89.
70 Wesley Vos, Elements of South African Water Law (2nd edn, Juta 1978) 24.
71 Ibid.
72 Kidd, ‘South Africa’ (n 69) 89.
73 The long title of the Water Act states its aim, namely to consolidate and amend the laws of South Africa that relate to the control, conservation and use of water for domestic, agricultural, urban and industrial purposes. The Water Act contained one separate schedule which listed all the laws that were repealed by the Act. Michael Kidd, Environmental Law (Juta 2011) 65.
74 A ‘public stream’ was defined by section 1 xiv as a natural stream of water that flows in a defined channel, whether or not such channel is dry during any period of the year, permitted that the water therein was capable of common use for irrigation on the properties of riparian owners.
75 Groundwater could also be ‘subterranean water’ if found in a subterranean government water control area and therefore under state control. Kidd, ‘South Africa’ (n 69) 91; Tewari, ‘A Detailed Analysis’ (n 28) 701.
76 Vos (n 70) 8.
77 Pienaar and Elmarie van der Schyff (n 17) 183.
78 Minister van Waterwese v Mostert en Andere [1964] 2 SA 656 (A) [669].
79 Elmarie van der Schyff, The Constitutionality of the Mineral and Petroleum Resources Development Act 28 of 2002 (LLD thesis, Potchefstroom University for CHE 2004) 258–259, 283–285.
80 Young (n 34) 40, 88.
81 Land ownership (which was linked to access to water) generally resided in the hands of the white minority due to the strict Apartheid policy that applied in South Africa. Consequently, the majority of black South Africans were denied access to sufficient water. See South Africa, Department of Water Affairs and Forestry, ‘Introduction’ in White Paper on a National Water Policy for South Africa 1997.
82 The terms ‘black South Africans’, ‘black people’ and ‘black majority’ are used as defined by the Broad-Based Black Economic Empowerment Act 53 of 2003. The act defines ‘black people’ as a generic term which includes Africans, Coloureds and Indians.
83 The majority of the population was restricted from access to water. Kidd, Environmental Law (n 73) 65.
84 Due to the scope of this article, the content and meaning of section 27(1)(b), as well as the obligations of the state in terms of the constitutional water right, will not be discussed in detail.
85 Eric Nealer and Elize Van Eeden, ‘Challenges Regarding Potable Water Supply Management by South African municipalities’ in CA Brebbia and Viktor Popov (eds), Water Resources Management V (WIT Press Southampton 2009) 58; Germarié Viljoen, Water as Public Property: A Parallel Evaluation of South African and German Law (LLD thesis, North West University 2016) 173.
86 The NWP redefined ‘ownership’ of water. It declares that all water, irrespective of where it occurs in the hydrological cycle, is public water and that the national government will act as public trustee.
87 To ensure the right of access to basic water supply and sanitation, and to provide for a framework and establishment of water services institutions.
88 The 2004 and 2013 strategies provide for the national implementation framework and divide the country into water management areas.
89 Haroon Karodia and Derek Weston, ‘South Africa’s New Water Policy and Law’ (Intersectoral Management of River Basins, date unknown) http://publications.iwmi.org/pdf/H029111.pdf accessed 15 February 2020.
90 Although groundwater is not always explicitly mentioned in the policy, it receives the same status as surface water.
91 Long title and section 2 of the NWA.
92 Michael Blumm and Rachel Guthrie, ‘Internationalising the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision’ [2012] 44 University of California Davis Law Review 791; Jan Glazewski, Environmental Law in South Africa (LexisNexis 1999) 17. See also Pienaar and van der Schyff (n 17) 183–184; van der Schyff, Constitutionality (n 79) 79–152; Elmarie van der Schyff, ‘Unpacking the Public Trust Doctrine’ (n 24) 123; Germarié Viljoen, The Public Trust Doctrine in South African Water Law (LLM dissertation, North West University) 35.
93 Pienaar and van der Schyff (n 17) 183–184.
94 Things that cannot be privately owned or are out of commerce were categorised as res omnium communes and res publicae. Res omnium communes are common things and the use thereof is available to all. In terms of Roman law, the air, flowing water, the sea and seashore were regarded as typical examples of common things. I 2.1.1; D 1.8.2.1.
95 Jack Tuholske, ‘Trusting the Public Trust: Application of the Public Trust Doctrine to Groundwater Resources’ [2008] 9 Vermont Journal of Environmental Law 214.
96 Ibid.
97 Shively v Bowlby [1894] 152 US [1].
98 Shively v Bowlby [1894] 152 US [1, 11, 12].
99 Elmarie van der Schyff, ‘Stewardship Doctrines of Public Trust: Has the Eagle of Public Trust Landed on South African Soil?’ [2013] 130(2) The South African Law Journal 375.
100 Shively v Bowlby [1894] 152 US [1, 56].
101 van der Schyff, ‘Stewardship Doctrines of Public Trust’ (n 99) 378.
102 Joseph Sax, ‘The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention’ [1970] 68(3) Michigan Law Review Association 471. Olsen referred to Sax’s seminal work as the ‘leading treatment’ on the public trust doctrine; James Olson, ‘The Public Trust Doctrine: Procedural and Substantive Limitations on the Governmental Reallocation of Natural Resources in Michigan’ [1975] 2 Detroit College of Law Review 162.
103 Michael Blumm, ‘Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine’ [1989] 19(3) Environmental Law 574; James Huffman, ‘Why Liberating the Public Trust Doctrine Is Bad for the Public’ [2015] 45 Environmental Law 337; Tuholske (n 95) 233.
104 van der Schyff, ‘Stewardship Doctrines of Public Trust’ (n 99) 377.
105 Ibid, 378.
106 Ibid.
107 In light of the above, the assumption that the South African concept of public trusteeship was borrowed or transplanted from the Anglo-American public trust doctrine may not be entirely correct. As discussed earlier, South African law originated from the Roman-Dutch law and was further influenced by English law. Reference to the Anglo-American regime as a place of origin of legal principles for South African law is therefore strange from the outset. Further, as indicated, the Anglo-American public trust doctrine expanded and developed to different degrees in different American states, and uncertainty exists as to how the public trust doctrine is applied from one state to the next. This raises the question which variant of the Anglo-American public trust doctrine finds application in South African law.
108 Elmarie van der Schyff, ‘South African Natural Resources, Property Rights, and Public Trusteeship’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability (Koninklijke Brill 2011) 330.
109 NWP [5.1.2].
110 Elmarie van der Schyff and Germarié Viljoen, ‘Water and the Public Trust Doctrine – a South African Perspective’ [2008] 4(2)The Journal for Transdisciplinary Research in South Africa 340.
111 Ibid.
112 See the introduction of the NWP; van der Schyff and Viljoen (n 110) 393–340.
113 Para 5.1.1 of the NWP.
114 The long title of the NWA articulates that the act provides for fundamental reform of the law relating to water resources in South Africa; para 2.1.7 of the NWP.
115 Sections 2 and 3 of the NWA; Principles 2 and 3 of the NWP.
116 John Chilton, Groundwater in Deborah Chapman (ed), Water Quality Assessments – A Guide to Use of Biota, Sediments and Water in Environmental Monitoring (UNESCO/WHO/UNEP 1996) 2.
117 The Minister of Human Settlements, Water and Sanitation.
118 NWRS of 2004 [A 1, Principle 13].
119 Ibid; Chapter 8.5.1 of the NWRS of 2013.
120 Elmarie van der Schyff, ‘Stewardship Doctrines of Public Trust’ (n 99) 372.
121 Section 24 of the constitution stipulates that everyone has the right to, inter alia, have the environment protected.
122 In terms of section 27(2) of the constitution, the state must take reasonable legislative and other measures to achieve the progressive realisation of the right of access to water.
123 The NWA statutorily introduced the notion of a Reserve to specify the quantity and quality of water to be set aside before water is allocated for other uses.
124 para 5.2.1 of the NWP.
125 See the summary of the policy approaches in the NWP.
126 David Takacs, ‘South Africa and the Human Right to Water: Equity, Ecology, and the Public Trust Doctrine’ [2016] 55 Berkeley Journal of International Law 34, 80.
127 Mazibuko v The City of Johannesburg Case No 13865/06; City of Johannesburg and Others v Lindiwe Mazibuko and Others Case No 489/08 2009 ZA (SCA); Mazibuko v The City of Johannesburg and Others [2010] 3 BCLR 239 (CC).
128 Derick du Toit, Sharon Pollard and Ramin Pejan, ‘A Rights Approach to Environmental Flows: What Does It Offer?’ (unpublished 2009) 3.
129 Jonathan Levy and Yongzin Xu, ‘Review: Groundwater Management and Groundwater/Surface-Water Interaction in the Context of South African Water Policy’ [2011] 20 Hydrogeology Journal 206.
130 Robyn Stein, ‘Water Law in a Democratic South Africa: A Country Case Study Examining the Introduction of a Public Rights System’ [2005] 83(7) Texas Law Review 2179.
131 See the explanatory note for chapter 4 of the NWA. As a general rule, a water use must be licensed unless it is listed in Schedule 1, is an existing lawful water use or is permissible under a general authorisation, or if the responsible authority waives the need for a license.
132 Section 28(1)(d)-(e) of the NWA.
133 Section 53(1)(c) of the NWA.
134 Section 53(2)(a) of the NWA.
135 Section 54 of the NWA.
136 The question then comes to mind whether the NWA, through the concept of public trusteeship, arbitrarily deprived or expropriated owners of their exclusive use rights in private water, as per the property clause, section 25 of the constitution. The answer to this question is dependent on a critical understanding of the concept of property. For a critical discussion, see Elmarie van der Schyff, ‘Die nasionalisering van waterregte in Suid-Afrika: ontneming of onteiening’ [2003] 1 PER 81–113.
137 The construction of boreholes is provided for in section 29(e) of the NWA.
138 See the explanatory note for chapter 3, part 4 of the NWA.
139 Chapter 6 of the NWA sets out various powers and duties of the public trustee, including intervention in litigation.
140 See the explanatory note for chapter 3, part 4 of the NWA.
141 See the explanatory note for chapter 5 of the NWA.