Is South Africa suffering water apartheid?

The residents of South Africa’s Eastern Cape city of Nelson Mandela Bay are facing an uncertain future. At any moment, they may wake up to dry taps, as their city’s water supply dams could be depleted by the end of this May. This would leave the municipality's over 1,150,000 residents with no water until the rainy season resumes around October.

Nelson Mandela Bay is merely the latest of South Africa’s many cities and towns to face the imminent threat of ‘Day Zero’ - running out of water completely - a national crisis that was highlighted by the alarming case of Cape Town when it nearly ran dry in 2018 until a timely water donation from commercial farmers saved this city of over four million. 

Dozens of towns and cities across South Africa are facing critical water shortages due to a combination of factors ranging from population growth that is unmatched with supply, increasingly erratic rainfall and hotter temperatures resulting from climate change, poor planning and corruption, among others.

Amidst this growing thirst, there is one segment of the population that enjoys a seemingly unending abundance of this coveted resource: white farmers who control over 90 percent of the country’s 4,000 dams. 

Although South Africa accounts for the largest number of millionaires and billionaires of any nation in Sub Saharan Africa, a World Bank report shows that the richest 20 percent of people in South Africa control nearly 70 percent of the country’s resources. And while white people account for a mere 7.7 percent of the population, they control the lion's share of the country's most productive farmland. The dams in question are intrinsically tied to South Africa’s land ownership pattern, whose legacy of apartheid many analysts regard as ticking time bomb.

Demands For Nationalisation Of Dams

It is this state of affairs that South African politicians and rights activists are now finding unacceptable and is the motive behind the growing demand for the nationalisation of all dams in South Africa.

"We want to know who is this one that has so much water and the remaining 3,000 dams," demanded Hlomane Chauke, an African National Congress (ANC) politician and former chairperson of Parliament’s Portfolio Committee on Water and Sanitation. "Who is in control of those dams? We have a drought crisis here but some dams are privately owned. This is something that is political and we have to resolve it. It cannot be that when so many of our people, you see them with containers everyday."

Chauke told FairPlanet that they are seeking radical changes seeing as unequal access to water and other resources are historical issues that date back to the arrival of European colonialists on the country’s shores in 1652.

"Since that time, white South African farmers were given rights to the ownership of water," Chauke told FairPlanet. "Of the 4,000 dams of water in South Africa, only 350 are under the control of the government. A majority of our people, including black farmers, don’t have access to water."

"When in our Constitution water is a right under the Bill of Rights, only five percent of the population has access to water," he added. "We do have legislation that [says the] State controls water, but in practice the State does not have that control."

governmental Control over Water sources Resisted

In the aftermath of the one-time donation of 10 billion litres of water by farmers that saved the city of Cape Town in 2018, the government’s Department of Water and Sanitation (DWS) has started taking steps to transfer control of water from individual farmers to the State. But this move ignited a protracted legal battle that has now reached the country’s Constitutional Court, as white farmers are not quite prepared to forgo their water privileges.

In 2018, the DWS issued a circular prohibiting water rights holders from transferring their entitlements. After the farmers failed to obtain a court order declaring the circular illegal, they took the case to the Supreme Court of Appeal which, in November last year, ruled that water rights’ holders are entitled to transfer such rights in accordance with the provisions of South Africa's National Water Act, and that trading in such rights is neither prohibited nor unlawful.

This prompted the South African government, through its DWS, to appeal this decision in the Constitutional Court, where the case will be heard on 25 August.

‘Water Apartheid’ Charges Denied

AgriSA, South Africa’s farmers’ body, which is sponsoring the lawsuit, insists that its members are entitled to these rights. 

"Stewardship of water involves not only the efficient use of scarce water resources, but also the legal protection of water use entitlements, which are not only essential for access to water, but are also a valuable asset for South Africa’s farmers," the lobby said in a statement to its members.

"The ability to lawfully transfer water use entitlements in accordance with the provisions of section 25 of the NWA (National Water Act) is vital, particularly for the irrigation agricultural sector. The transferability of water use entitlements in terms of the NWA was envisaged from the outset, and this was actively endorsed and supported by the DWS."

Asked to justify the alleged hoarding of billions of mega-litres of water in the midst of a shortage, Willem Symington, chairperson of AgriSA’s Centre of Excellence Natural Resources, denied charges of perpetuating ‘water apartheid’ in South Africa, telling FairPlanet that everything was done in accordance with the law.

"All our big dams are government-owned and the State is the curator of all the water in South Africa and from there, there is different allocation of water according to a very progressive Water Act that we have got in South Africa," Symington said. "For instance, one of the priority issues in the Water Act is that human consumption has the first right of any water in South Africa. Before any water is allocated for industry or agriculture or whatever, the rights of humans to water - and not just water but portable, safe water - is enshrined in the Water Act."

Symington promised to send an email giving a detailed explanation on this emotive issue, only for him to change his mind later on, referring FairPlanet to Janse Rabie, AgriSA’s Law and Policy Executive, who did not respond.

Rights On Paper Only

Among other things, the Water Services Act stipulates that everyone has a right to access basic water supply and sanitation services, that a household is entitled to 6,000 litres of free water per month and that no one should be deprived of water for more than seven days in a year.

The ultimate target is to achieve universal and equitable access to safe and affordable drinking water for all by 2030. With more and more South African citizens going for extended periods of time without water, these rights exist on paper only - something that infuriates many. 

Expropriation Option On Table

With the resistance growing, hardliners like ANC's Hlomane Chauke see expropriation as the only way forward. An expropriation law - primarily meant to make more eland available to the black majority - is currently being worked on and the white farmers fear that this could include their water rights, too.

Under current South African law, expropriation can be invoked for two reasons: for a public purpose and in the public interest. In terms of section 25(4)(a) of the Constitution "public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources."

"Only if the government has control can we have equal distribution of water resources to all South Africans," Chauke said.

But AgriSA feels threatened. "The defense of the circular by the DWS constitutes a threat to the sector’s sustainability as government is once again attempting to effect an arbitrary deprivation of property. Coupled with the on-going debate around the Expropriation Bill, this action can only further erode investor confidence in the agricultural sector and in the broader economy."

Image by Kate Holt/Africa Practice