Water tenure.. A useful concept for South Africa 4-Jan-16File name1 Eiman Karar Executive Manager Water Research Commission Skype: immany3 Mobile:

Rights to water “The Reserve” is a concept defined by the NWA, which confers rights to basic human need water supply and ecosystem needs. Thus, the Reserve consists of two parts - the basic human needs reserve and the ecological reserve. “Schedule 1” water use. Schedule 1 entitlements include the use water in or from a water resource for reasonable domestic use, domestic gardening (not for commercial purposes), animal watering, water harvesting, and firefighting including recreational use referred to as Controlled activities. The water may be abstracted directly from any water resource to which that person has lawful access. The water may also only be used on land owned or occupied by that person. Although the NWA does not specify numerical limits for allocation of water for Schedule 1 uses, these water uses are subject to any restrictions or prohibitions imposed by other relevant laws, ordinances, bylaws and regulations. General authorisations in section 39 allow the Department of Water (DWA) to authorise large numbers of people to take up water without the need for a licence. General authorisations are intended to support the Water Allocation Reform (WAR) process of DWA. A water use licence Individual application for licences may be granted, through an application process for specific the water use(s) (see below). The water use licence is specific to a particular property. It is issued to a legal person and it may impose certain conditions to the person. It has a fixed licence period, which may not exceed forty years, and has a review period which must not exceed five years. a special category of entitlement is Existing Lawful Use (ELU) which makes provision for the continuation of water use which was in place prior to the date of commencement of the NWA. An existing lawful water use is a transitional water use entitlement which had taken place during a period of two years immediately before the date of commencement of the NWA. Section 32 to 35 of the NWA. CC Lighthouse Team (CM, SM, WN & SL)

Key Issue 1: Land versus Water governance Traditional Leadership (TL) plays significant roles in land governance, and minimal roles in water services governance. Vulnerable women and men commonly assume de facto roles in informal water services provision in contexts characterized by virtual ‘absence’ of govt. Policy Implication: To involve TL in day-to-day water service delivery would be to unnecessarily take them out of their conventional domains and thereby add an institutional albatross that can only serve to increase transaction costs and hinder effective delivery.

Key Issue 2: Gender Accountability Linked to legitimacy issue. Traditional rural communities often characterized by social constructs that militate against women and vulnerable men’s access to bases of social power and productive wealth. Policy implications: Effective legal provisions for gender accountability and commitment by TLs are needed to curb possible negative impacts of undemocratic practices on vulnerable gender groups, particularly women.

Gender Inequalities in Access to Resources and Decision-making Platforms: Pongola WUA Women’s Struggles for Water: Marginalized Men’s Struggles for Fishing Rights: Mainstreamed

Key Issue 3: Legitimacy Views that hereditary basis of traditional rule and historical co-option of TL into colonial and apartheid systems renders it irreconcilable with democratic values of SA Constitution. In some local contexts, Traditional Leadership enjoys a higher degree of legitimacy than elected leadership. Policy Implications: Flexible and Negotiated Institutional Approaches NOT Blueprint Institutional Bricolage NOT Design Need to address outstanding concerns about TL legitimacy

South Africa exceptional? SA rural water security challenges are indeed reminiscent of challenges elsewhere in much of Southern Africa. African scholars elsewhere: Decry precedence of Roman-Dutch and English law over African Customary law. Argue that water rights in African contexts derive from many sources besides government. There could be a significant role for a water tenure concept to address water rights as a collective recognising SA water governance needs whilst recognising prevailing sensitivities regarding SA’s historical political economy and its legacy.

PwC Thank You 8