Given the legal and food security implications of the proposed Water Use Licence Applications, Amendment and Appeals Regulations published in May, Agri SA says it is essential that they are reviewed and substantially amended.
Agri SA on Monday said it had submitted its comments on the proposed regulations.
According to the Department of Water and Sanitation, the purpose of the amendments is to effect reforms in relation to equitable allocation of water use, as well as to amend the procedural requirements related to applications of new water use licences, including reviewing the time frames and fees linked to licence application processes.
Comparative statistics drawn from issued water use licences to Historically Advantaged Individuals (HAI) and Historically Disadvantaged Individuals (HDIs) since 1998 indicate that a total of 412 million cubic metres (m3) of water has been allocated among the two groups. Of the 412 million m3, 313 million m3 (75.93%) has been allocated to HAI, while 99 million m3 (24.07%) has been allocated to HDIs.
The department said the statistics indicated that water allocations remained highly skewed towards the HAI group, and they should make efforts to improve this situation.
The revised regulations have introduced proposed thresholds of abstraction volumes of water against the level of black ownership in applications submitted for new water use allocations.
Legal and policy executive at Agri SA, Janse Rabie, said subsequent to the publication of the draft regulations, on June 15, 2023, Agri SA had a meeting with the department where officials clarified that the new transformation requirements would only apply with respect to the 1.5% of water resources in South Africa that had not already been allocated.
“The regulations are also not intended to apply to applications for the renewal of existing water use licences, or to the water use licence applications which will arise out of compulsory licensing.
“Agri SA welcomes this clarification and has included these parameters in our suggested reformulation of the regulations. Notwithstanding this important clarification, Agri SA remains concerned that the draft regulations, as published, are not consistent with the relevant provisions of the National Water Act, the Equality Act, and the Constitution,” Rabie said.
No provision in the National Water Act empowered the minister to make regulations prescribing substantive requirements for licence applications or for the determination of licence applications, Rabie said.
“Even if such a power is inferred, the act provides that, in issuing a licence, the responsible authority must take into account all relevant factors.
This includes a list of 11 factors, including efficient and beneficial use of water in the public interest, and investments already made by a water user. The need to redress past racial and gender discrimination is one of these 11 factors. By law, when determining an application for a water licence, the responsible authority must strike a reasonable balance between all the factors.
“The arbitrary and thus legally impermissible nature of racial quotas has already been established by court judgments. As the draft regulations do not allow for any element of discretion, they are so rigid as to be indistinguishable from a quota, and therefore invalid,” Rabie said.
A further concern was that the draft regulations “reduce transformation to black ownership”. Agri SA said the inclusion of women as a previously disadvantaged group should also be taken into account, as currently, only racial transformation goals were included in the draft regulations.
“Agri SA is all too aware of the historical imbalances that prevail in the farming sector today, but the sector must achieve equality within the rule of law,” Rabie said.
Cape Times