Government targets water rights: Rigid transformation measures and greater state control are risky, warns AfriForum
AfriForum maintains that the implementation of the National Water Amendment Bill of 2026 in its current form would grant the government far-reaching additional powers regarding the allocation of water rights for productive use. The civil rights organisation believes that implementing the bill would entail various risks, including discouraging investment, increasing financing risks, and placing further pressure on production and employment in water-dependent sectors such as agriculture.
The organisation submitted its written comments on the bill to Parliament today. In it, AfriForum emphasises that while promoting the equitable allocation of water use rights is an important and legitimate objective of the National Water Act, measures allowing for greater ministerial discretion regarding the substantive content of regulations and administrative decision-making on the allocation of water use rights undermine legal certainty. At the same time, the bill does little to address the practical bottlenecks delaying progress on the equitable allocation of water use rights.
According to Marais de Vaal, AfriForum’s Advisor on Environmental Affairs, the approach to redressing historical racial and gender discrimination – currently one of several factors to be balanced when allocating water use rights – lies at the heart of AfriForum’s objection to the bill. “The bill elevates the redress of racial and gender discrimination to a separate, mandatory requirement without explaining how it should be weighed against practical factors such as whether the water will be used productively, or what the impact will be on job opportunities, investment, and existing lawful water uses,” De Vaal explains.
Moreover, in the absence of clear legal guidelines, this leaves officials with broad discretionary powers. It creates uncertainty and affords the government excessive freedom to make far-reaching decisions without clear safeguards for affected water users.
Furthermore, the proposed “use-it-or-lose-it” provision contained in the bill would allow for the restriction of an existing lawful water use if the full allocated volume has not been utilised for a period determined by the Minister. According to AfriForum, this provision is also problematic because the bill fails to adequately distinguish between deliberate non-use and circumstances – such as droughts, floods, or infrastructure deficiencies – that could reasonably lead to a deviation from normal usage patterns. Under such circumstances, restricting a water user’s usage could be unfair.
Other aspects of the bill that AfriForum regards as problematic include the removal of the mechanism allowing a person to apply for the formal recognition of an existing lawful water use; the expansion of broad ministerial powers to reallocate water across sectors, provinces, and catchment areas; and increased government control over the membership and functioning of water user associations.
De Vaal emphasises that these associations are intended to function as voluntary, co-operative structures serving local water users, rather than as extensions of a centralised government.
AfriForum also warns that the Water Tribunal – established under the National Water Act to adjudicate certain water rights disputes outside the court system – is currently not functioning as an effective mechanism for administering justice. “It would be irresponsible to expand the department’s executive powers while the very tribunal meant to provide speedy remedies and promote the equitable allocation of water rights is plagued by backlogs and institutional shortcomings,” De Vaal further explains.
“There are already so many existing mechanisms available to promote the equitable allocation of water use rights. Yet, after nearly three decades, these mechanisms have still not been effectively implemented. The further expansion of the government’s powers is therefore unjustifiable, especially given the government’s inability to honestly confront its own failures. We can, therefore, rightfully ask whether these amendments will truly place more water in the hands of productive water users or simply concentrate more power in the hands of the government at the expense of the broader society,” De Vaal concludes.
Water use rights are essential to support the development of mining, industrial, and forestry operations. Certainty regarding water use rights is particularly crucial for unlocking the value of agricultural land, as long-term investment decisions – such as those concerning irrigation systems or the planting of new orchards – hinge on them. If the bill restricts or eliminates these rights without clear criteria, adequate compensation, or proper procedural safeguards, it could have disastrous economic consequences.
The Portfolio Committee on Water and Sanitation must now consider public submissions and decide what changes should be made before the revised bill is tabled in the National Assembly.
AfriForum will continue to monitor the legislative process. If the amendments become law without these concerns being addressed, AfriForum will take the necessary steps to challenge any unlawful or unconstitutional implementation of the provisions.
