Draft water-use regulations: Bad policy flowing from bad process – IRR

South Africa’s draft water-use regulations – which would subject water licences to strict racial quotas – reflect a deeply deficient process, and are in any event ultra vires (outside the accepted powers of the minister), says the Institute of Race Relations (IRR).

The Institute says in its submission to the Minister of Water and Sanitation that the draft rules set out in the ‘Revision of Regulations Regarding the Procedural Requirements for Water Use Licence Applications and Amendments’, would require an escalating level of ‘black’ ownership (as the document phrases it ‘% shares allocated to blacks’) of the enterprise applying for a water licence.

This stands to have extensive implications for agricultural and forestry operations, particularly given that many in these sectors are family businesses. While applying initially to new applications, these strictures may come into play when licences come up for renewal.

A key failing is that no Socio-Economic Impact Assessment (SEIA) has been made available. These are required in terms of guidelines produced in 2015 to assess the consequences of legislation and ‘significant regulations’ and any ‘major amendments of existing regulations…that have country coverage with high impacts’. This has evidently not been done.

The lack of a SEIA has made informed public engagement difficult, if not impossible. This violates a considerable body of constitutional jurisprudence requiring public consultation, ‘a meaningful opportunity to be heard in the making of laws that will govern them’, and ‘a reasonable opportunity to know about the issues and to have an adequate say’, as the Constitutional Court has put it. In this instance, the public was clearly deprived of this opportunity.

Most importantly, the regulations are ultra vires. The National Water Act states that when issuing a water licence, the responsible authority must ‘take into account all relevant factors’. These are not limited to considerations of redress, but include such matters as ‘existing lawful water uses’, the extent of ‘investments already made’ and the ‘socio-economic impact’ of allowing or refusing the requested water use. None of these has precedence over another.

This has been confirmed, moreover, by both the Pretoria high court and Supreme Court of Appeal in the Goede Wellington Boerdery (Goede Wellington) case.

This case began when Goede Wellington’s application for the transfer of a water-use right was denied on racial grounds, prompting it to seek judicial review of the tribunal’s decision. Handing down his ruling in 2011, Judge James Goodey criticised the Department’s application of the Act, which clearly states that all 11 factors must be considered. This means that an applicant’s race cannot be the sole consideration in deciding on a water-use licence. The department appealed against this ruling, but the Supreme Court of Appeal upheld it in 2012.

The minister appears to be trying to bypass this, and give primacy to considerations of redress, by means of the draft Regulations.

In addition, there is nothing in the National Water Act permitting the minister to decree that the responsible authority must ‘give preference to applications from black people, followed by women’, as the draft Regulations state. Nor is there any legislative authority in the Act for the draft Regulation’s demand for racial quotas in the enterprises applying for licences.

The Constitutional Court has recently confirmed, in Minister of Finance v AfriBusiness NPO, that regulations that are ultra vires the powers conferred on a minister by a particular statute are invalid and unconstitutional. The draft Regulations fall clearly within this category. They are therefore unconstitutional and must simply be withdrawn.

The draft Regulations further call attention to the deficient processes that frequently accompany South African lawmaking. This sets legislative and regulatory measures up for legitimate legal challenges, and generates insecurity for all those subject to them. In so doing, it undermines effective administration and the legitimacy of the law itself.

Media contacts: Hermann Pretorius, IRR Head of Strategic Communications Tel: 079 875 4290 Email: hermann@irr.org.za

Terence Corrigan, IRR Projects and Publications Manager Tel: 066 470 4456 Email: terence@irr.org.za

Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za

Sinalo Thuku, Tel: 073 932 8506 Email: sinalo@irr.org.za