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HEALTH AND SANITATION
The Constitution of the Republic of South Africa, 1996,
provides that everyone has a right of access to water. No
equivalent right exists in the context of sanitation. The right
of access to water is given effect through the enabling
legislative framework, namely the National Water Act 36
of 1998. Together with the Water Services Act 108 of
1997, the powers and duties of the state in respect of the
management of water and the provision of water services
are set out.
The National Water Act (Act 36 of 1998)
The National Water Act acknowledges the scarcity
and uncertainty of South Africa’s water supply in its
preamble, as well as the importance of managing water
in a sustainable and integrated manner. In addition, the
preamble to the Act appropriately identifies that water
occurs in many different forms, but all forms are part of the
same unitary and interdependent cycle.
The Act does not provide definitions for different forms
of water, though it does define different water sources,
specifically aquifers, boreholes, catchments, estuaries,
water courses, and wetlands. A water resource is
defined as including a “watercourse, surface water,
estuary, or aquifer”.
No definition is provided for greywater or black water.
This notwithstanding, the National Water Act is still of
relevance to the extent that it makes provision for the
sustainable use of water resources and aims to provide
for the management of all water resources. At the outset,
it is clear that there is no explicit reference to ‘greywater’
contained in the National Water Act.
Despite this fact, the Minister still has the authority to
regulate this form of water, particularly when the purposes
of the Act are considered. The overarching guiding
principles that inform the interpretation of the National
Water Act include sustainability and equity. The objectives
set out in the preamble are echoed by the purposes of
the Act, set out in section 2, which provide, inter alia, that
water must be used, protected, developed, conserved,
controlled, and managed in such a way as to promote “the
September 2019 Volume 25 I Number 7
efficient, sustainable and beneficial use of water in the
public interest”.
In accordance with the trusteeship model, the state is
empowered to, and must ensure, the use, protection,
development, conservation, management, and control
of water resources. In terms of this trusteeship model,
the legislative framework provides for the nature of
authorisations that the state may grant. No license
is required for domestic water use as it is generally
authorised in terms of schedule 1 of the Act.
Domestic use of water includes the use of water in a
household, for reasonable domestic use or gardening, the
watering of animals (subject to the grazing capacity of the
land, and excluding feedlots), the storage and use of roof
runoff water, and the discharge of water containing waste
and runoff. Such water use is subject to any limitation,
prohibition or restriction in terms of the Act itself, or
any other law. The water user is required to “return any
seepage, runoff or water containing waste which emanates
from that use, to the water resource from which the
water was taken, unless the responsible authority directs
otherwise”.
Relevant definitions in this context include the definition
of conservation, pollution, protection of water resources,
waste and waterwork, as follows:
• Conservation is defined in the Act as “the efficient use
and saving of water, achieved through measures such
as water-saving devices, water-efficient processes,
water demand management, and water rationing”.
• Pollution is defined in the Act as meaning the “direct
or indirect alteration of the physical, chemical, or
biological properties of a water resource so as to
make it (a) less fit for any beneficial purpose for which
it may reasonably be expected to be used;
(b) harmful or potentially harmful (aa) to the welfare,
health or safety of human beings; (bb) to any aquatic
or nonaquatic organisms; (cc) to the resource quality;
or (dd) to property”.
• Protection of water resources is defined in the Act as
meaning the “(a) maintenance of the quality of the
“The
Constitution
of the
Republic
of South
Africa, 1996,
provides that
everyone
has a right
of access to
water. No
equivalent
right exists in
the context of
sanitation.”
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