ConCourt ruling on water rights a victory for farmers

26 March 2023

South African farmers have registered a significant victory over water rights use after the Constitutional Court ruled that water rights holders are entitled to transfer such rights in accordance with the provisions of the National Water Act. In 2013, the Department of Water and Sanitation issued a circular barring farmers from transferring and trading in water use rights. The alienation of water use entitlement and lawful transfer of such ownership to a third party has been contentious for some time.

The DA welcomes this seminal judgement as it puts to rest years of ongoing friction between farmers and the Department of Water and Sanitation (DWS), where the latter wrongfully misinterpreted sections 25(1) and 25(2) of the National Water Act to deny farmers the full benefit of their water rights.

A fair and transparent water rights system is the cornerstone of any successful agriculture and commercialization of the sector, especially for emerging farmers. The Concourt ruling ensures that farm sale transactions will allow the purchaser to become the successor in title of lawful water uses associated with the farm operation, post-closure of the transaction. What’s more disappointing is that farmers who purchased farms or wanted to do so with the sole aim to conduct empowerment programmes were failed by the ANC government’s failure to interpret the National Water Act 36 of 1998.

The DA encourages all farmers who previously had their water license applications denied based on the wrongful interpretation of the Act, to resubmit them and have them reevaluated based on the findings of the Concourt.

It is preposterous for the DWS to stand in the way of lawful farm sale agreements to reflect the farm purchaser as the licensee in the title of the water use rights. If farmer A has a source of water that they were not using, they should be allowed to open it up for use by farmer B if they so wish. Such an arrangement is beneficial to both parties as one benefits financially from their water resource while the other is able to carry out their agricultural activities with a steady supply of water. The DWS’s interference in such an arrangement was simply administrative overreach by the government and a violation of the National Water Act.

The DWS’s interference with water rights use was particularly hard on our irrigation-reliant agricultural sector. Most farmers had to jump through hoops to obtain the bare minimum supply of water for their operations. In the current high inflationary environment where food prices have shot through the roof, the government should be making it easy, for farmers to grow their produce without interference.

Part of the friction and confusion that has characterized water use rights in South Africa is that the government has no data to establish who is using water, where and by how much. A critical first step in this regard will be to commission a national water use audit that would provide critical data on the distribution of water sources and all the national stakeholders who use them.

Issued by Noko Masipa, DA Shadow Minister of Agriculture, Land Reform and Rural Development, 26 March 2023