COMMUNITY LIVING
Boschenmeer Estate Stonehurst Mountain Estate Pezula Private Estate
This has translated into significant risk for bulk users , and is one of the reasons that some foreign direct investment has been withheld from South Africa , as investors would be loath to put money into an enterprise if there is a chance that water might not be available in a few years ’ time .
But what about domestic water use ?
It would be a logistical nightmare to authorise every domestic water user , so government issues general authorisations for domestic use to municipalities , which serve as bulk water suppliers . So the public – and even many estate managers – remain blissfully unaware that they do not have a permanent , inalienable right to water on their land , even if they decide to drill a borehole during a drought .
So what does that mean in practice ?
citizens have been using groundwater and / or riparian water with impunity – but , technically , illegally . ( Just because you ’ ve got away with it , doesn ’ t mean it ’ s legal .)
Of course , business plans should be based on guaranteed access to resources , and compliance with all relevant regulations , so developers and / or HOAs must take cognisance of the fact that , while there might be a borehole on the estate , it may not be strictly legal to use it . And , even if it is , there is no guarantee that this will continue to be the case . So probably the only way to create unassailable water security is rainwater harvesting . Once rainwater becomes part of the groundwater it belongs to the state , but , if you catch it before it enters the ground , you can keep it – at least until the state decides that this is a streamflow reduction activity that falls foul of Section 21c , or decides to attach conditions to the storage of that water in terms of Section 29 / 1 / e / vii .
All water use must be authorised . When seeking authorisation , users or potential users must motivate why they need the water , and must support their application with a raft of technical documents that may cost hundreds of thousands of rand to produce . It is unlikely that a developer would be denied permission for domestic purposes , but using groundwater for the irrigation of sports fields or golf courses , or for water sports , may be regarded somewhat less favourably . The take-home message is that water may never be owned as a right in South Africa .
This may come as a surprise because , despite the regulations , the state has – at least until now – not had the capacity to fully implement the NWA . So farmers , developers , estates , and even individual
At present , the state lacks the capacity to effectively implement the NWA , but bear in mind that they do have full authority to prosecute illegal use of water from a river or from a borehole , and can prevent future exploitation of the resource . For example , the state is empowered to seal a borehole that is being used without authorisation by pouring concrete down the shaft . To my knowledge this has never been done in South Africa , but it is legally and logistically possible .
This opens a range of legal issues for trustees , directors and managing agents of existing estates that are using boreholes and / or river water , and for developers who are planning to exploit riparian or groundwater in their developments .
35 H O A
Dr Anthony Turton