AfriForum’s fight against race-based water rights continues

The civil rights organisation AfriForum’s legal team today filed an appeal against the Department of Water and Sanitation’s (DWS) rejection of an application for the transfer of a black farmer’s water rights for irrigation to a white farmer.

The DWS argues that water rights previously allocated to a black farmer cannot be transferred to a white farmer because this would be contrary to the department’s transformation objectives. By ignoring the requirements of the National Water Act 36 of 1998 as well as rulings of both the Supreme Court of Appeal and the Constitutional Court, the DWS unequivocally states that race is the determining factor in the allocation of water rights.

It appears that the DWS simply disregarded other material factors that it was obliged to assess during the water license application. Including:  

• whether the water will be used efficiently and for the benefit of the public interest,
• whether the water use will promote socio-economic development,
• whether the water use is aligned with the relevant catchment management plan,
• the impact that the water use will have on surrounding water users,
• the impact that the water use will have on the quality of the water resource concerned and
• the investments already made by the water user in order to utilise the water.

None of these factors is more important than any of the others and therefore race is not a stand-alone factor. By elevating race to the determining factor, white farmers are automatically discriminated against.

“Seen against the backdrop of the DWS’s recent attempts to impose transformation goals on the water sector, this development is a blatant disregard for the rule of law,” says Marais de Vaal, AfriForum’s Advisor for Environmental Affairs . “The irony of the DWS’ paternalistic attitude towards transformation is that a black farmer who wants to relinquish his water rights on the basis of commercial considerations is prevented from exercising his free will,” adds De Vaal.

Francois Rossouw, CEO of Saai, says that the narrow application of the DWS’s race policy is simply not conducive to meaningful redress of historical racial discrimination in the agricultural sector. “The employment of dozens of permanent and seasonal black workers in a rural area suffering from high unemployment, as well as the development of the local economy and businesses in the value chain, also remain at risk.”

This is the latest case in AfriForum’s ongoing fight against the DWS’s previously controversial attempts to impose unlawful transformation requirements on the water sector. In the last two years, these organisations have, among other things:

• Successfully pressured the DWS to reverse an irrational and unfair decision to reject the temporary transfer of a water use licence on the grounds of race.
• Urgently requested the Minister of DWS to make an immediate correction to the DWS’s online platform for water use licence applications, on which applications would only be processed if the applicant met the Broad-Based Black Economic Empowerment (BBEE) requirements.
• Expressed serious concern about the draft amendment bill to the National Water Act, which, among other things, seeks to subject water use licences to explicit transformation requirements.
• Strongly opposed proposed regulations to subject water use licences to racial quotas (the DWS withdrew the proposed regulations at the eleventh hour).
• Strongly opposed proposed regulations regarding water use for recreational purposes that would result in the expropriation of recreational water users’ established rights (the DWS withdrew the proposed regulations at the eleventh hour).

AfriForum will continue to fight against any form of discrimination in the allocation of water rights and will continue to protect the rights of all water users. Therefore, these organisations encourage the public to report any form of discrimination in the allocation of water rights here.