Long Arm of the Law

In my previous few blog posts, I have been exploring how different measures such as changing crops and traditional ecological knowledge can improve productivity. For this one, the focus will be on an impediment - water rights, using South Africa as a case study.

Agriculture demands the greatest share of water resources compared to industrial and domestic uses, particularly in the form of irrigation. As covered before, physical water scarcity may not plague Africa but rather, economic water scarcity encumbers such use. Sometimes, water laws further entangle the issue of access and can be discriminatory towards certain groups, especially the poor. In Sub-Saharan Africa, the prevalent system is that of issuing permits, whereby users can apply for legal usage of water and managers can dictate the terms of usage if the application is authorised (vanKoppen & Schreiner, 2014). In theory at the state level, such regulation safeguards against the overexploitation of water resources from large users (e.g. transnational commercial farms, industries) and allows access to the poor (van Kopper & Schreiner, 2014). In reality, small and rural users are often discriminated against as customary water laws are deemed illegal and the system of applying for permits provides advantages to the wealthy and larger users (van Kopper & Schreiner, 2014). To better understand this, South Africa will be used as a case study and the historical context will be explored.

Source

Background   

Precolonial South Africa: Water use was determined by African customary law (Tewari, 2009). Water and land were deemed free to use and the different tribes and communities had chiefs who governed their distribution (Tewari, 2009). This ended with the intrusion of resources by Dutch settlers and control over the African communities.

Dutch rule: The Dutch settlers took reference from the Netherlands, which had its law based upon Roman law and water was divided into private and public (Tewari, 2009). Water could be accessed by all, but when there were limited water resources, the state gave entitlements to individuals which were subject to conditions and could be removed whenever these conditions were not met (Tewari, 2009).

British rule: After the British took over the Cape, they installed a riparian system. The state was divested from control of waterways and given to individuals instead (Tewari, 2009). Ownership of land which was adjacent to streams gave landowners right to that water.

Apartheid regime: The National Water Act enacted in 1956 retained the riparian system but gave the state final ultimate say in water usage. More stringent measures were introduced for groundwater and industrial consumption (Tewari, 2009).

However, van Koppen and Schreiner (2014) note that the colonial and apartheid regimes removed Africans from the rights to water under the riparian system as they were divested of 87% of land in the 1936 Land Act. The leftover 13% was state land, thus it was possessed by the state (van Koppen & Schreiner, 2014). In the state lands, African customary law was practiced in tandem with the riparian law (van Koppen & Schreiner, 2014).

Present Day

The National Water Act of 1998 sought to implement the permit system in South Africa. It continued Water Services Act of providing citizens free 25 litres a day but also introduced licenses, General Authorisations for smaller users and Existing Lawful Uses. General Authorisations allow for usage of small amounts of water without requiring a license while Existing Lawful Uses entitles users who have documented use of water resources up to 2 years prior to continue doing so until they have attained licenses (van Koppen & Schreiner, 2014). This reproduces inequalities through discriminating against black Africans who practice customary law through sharing water resources and privileges whites who have individual access to land and riparian rights from previous regimes which are well recorded (van Koppen & Schreiner, 2014). 

Moreover, Tewari and Oumar (2013) note that the high administrative costs and bureaucratic inefficiency of issuing permits means that national planning of water management focuses on large scale users. Within South Africa, 70-90% of water used is by the highest 10% of users and the remaining 60-80% of small users barely increases the volume captured (van Koppen & Schreiner, 2014). This discourages the Department of Water Affairs, which administrates water resources, from issuing licenses to small-scale users such as smallholder farms which complicates matters as they are using waters illegally. Furthermore, investment in irrigation is deterred when water rights are not secured because of increased financial risk incurred, ultimately affecting agricultural productivity (Tewari & Oumar, 2013). 

Therefore, the permit system, while intending to regulate water usage, has reproduced historical inequalities that existed during the colonial and apartheid rule. This new system has benefited many large-scale, literate users who are able to navigate it while further entrenching the legal barriers many poor black Africans face (van Koppen & Schreiner, 2014). Addressing this inequity would be a useful step towards solving issues such as greater productivity in agriculture.