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There are exceptions to this, however, such as where the use of groundwater in your area was subject to the control of any government authority, legislation, water court, or irrigation board or similar body. In this case, your‘ existing lawful water use’ is limited to the use that you were lawfully permitted by these bodies.
The Act provides that if you have an‘ existing lawful water use’, you are deemed to be using water from your borehole lawfully under the Act, but only as an interim measure, until you can apply for a water use licence( if you need one).
If you fall into this category, be aware that the Act provides that an investigation can be carried out into whether your‘ existing use’ was indeed lawful or not. You can also apply for this investigation to be carried out if you want to validate your present use through the‘ existing lawful water use’ requirements in the Act.
Do I pay anything to the municipality for water if I have a borehole?
In COJ’ s jurisdiction, you won’ t pay for the water drawn from the borehole, but you might be charged for sewer generated based on the water drawn from the borehole.
EMM, however, reserves the right to install a meter to measure how much is drawn from the borehole, but at present doesn’ t charge anything for water drawn or effluent generated as a result of the borehole.
However, EMM’ s by-laws give it the power to decide at a later stage that it can prescribe limits to the amount of
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water to be drawn from the borehole, and impose a cost for same. Check with your municipality.
Who is responsible for the quality of the water that comes out of the borehole?
In short, you are, and the municipality cannot be held liable for the poor quality of the water in your borehole. You should have the quality of your borehole water tested regularly to ensure that it is safe to drink and use for other household and / or commercial purposes.
Many municipalities( including COJ) empower themselves through their health by-laws to call for particulars of your water source( details of the borehole), proof that the water quality is sufficiently safe, and some( including COJ) even require that a certificate be submitted annually( or when requested by a health officer) as proof of same.
Danger to the public
You need to ensure that your borehole is properly covered so that no person or animal can fall into it and sustain injuries. In the event that any person or animal is injured in this manner, you may be held liable for damages.
You also need to ensure that your borehole is not being contaminated by any source, as this will lead to the groundwater source( from which your borehole draws water) being contaminated too. Most municipalities regulate this in their health by-laws.
Financial analysis
Although in most cases a municipality will not charge you
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anything for the water drawn from a borehole, there are considerable costs associated with the sinking of the borehole. These include the cost of drilling( which can be R40 000 or more), the cost of the electricity to power the pump needed to pump the water from the borehole, the monthly insurance for the borehole pump, and the maintenance and replacement thereof when necessary.
There are also several other risks associated with a borehole, such as the risk of the borehole running dry, the risk of your neighbour sinking a deeper borehole and drawing all of the water out of the aquafer that you are boring into, and the risk that the water quality will not be or remain suitable for your purposes.
Conclusion
When electing whether to use a borehole or to sink a borehole, one should consult an expert in this regard and ensure that any legal requirements, as well as any practical requirements, are met before embarking on the drill.
About the authors
Chantelle Gladwin is a partner and Nonhlanhla Ndhlovu an associate at Schindlers Attorneys.
Schindlers Attorneys specialises in conveyancing, tax, litigation, estates and trusts, family law, corporate law, and commercial law. u
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