Call to decolonise water laws

The most precious commodity in farming is water, but the law still largely favours large-scale farmers, the majority of whom are white, to the detriment of those previously disadvantaged.

This is according to a report released this week by the International Water Management Institute, which focused on how to “decolonise formal water laws” in Malawi, Kenya, South Africa, Uganda and Zimbabwe.

Today’s farmers in South Africa have to apply for a water permit to make use of bodies of water, such as dams and rivers, and the process is much more onerous than it was during apartheid, when only white people were granted licences.

The report states that a permit application takes about 300 working days. It also notes that the licensing processes are often costly, bureaucratic and inaccessible to many South Africans.

“In South Africa, with its history of racially based capitalism, the overwhelming majority of registered water users are white,” says the report. It added that a database of all water user registrations showed that rural water abstractors, such as mines and large-scale farmers, constitute 1.2% of all users, but use 95% of the water.

The institute proposes that customary law should be recognised when dealing with previously disadvantaged small-scale farmers and their use of water sources so they won’t have to go through the hurdles of applying for new permits.

Motsepe Matlala, the president of the National African Farmers’ Union (Nafu), says the laws do not favour small-scale farmers.

Nafu represents about 200 000 small-scale farmers, most of whom are black. Matlala says most farmers rely on rain and some have boreholes on their farms.

When the Driekoppies Dam in Mpumalanga was completed in 2000, there was an agreement that small-scale farmers in the area would get water, he says. “To this day, they are not getting access to the water. Most around the dam are small-scale sugarcane farmers. There is no water that they get from that dam. Nothing at all. And that is why their businesses are suffering.”

Matlala says government support for small-scale farmers is limited and factors such as illiteracy and competition from white farmers are the main reasons for their poor access to water.

This has been a problem since 1997, he says. The Water Services Act was introduced in 1997 with the aim of providing a basic water supply to all citizens. This was followed by the National Water Act in 1998, which focused on reforming discriminatory past laws.

But the institute found that there has been a bias in issuing permits since then.

Out of the 4 284 new water-use permits issued between 1998 and 2012, the report found less than half were for historically disadvantaged people, and only 1.6% of the water was allocated to small-scale farmers.

Douglas Mboweni, who is part of a co-operative that farms more than 300ha in the Bushbuckridge area of Mpumalanga, says they are like children to a flame; they don’t know what will happen to them if they are caught without a permit.

“I know we are meant to have the water licences and I make sure I attend the education sessions held by Inkomati Usuthu Catchment Management Agency. We rely mostly on the dam, but we currently don’t have those permits,” he says.

During apartheid, white farmers could get permits easily, he says. Since things have changed, his co-operative is still looking into applying for a permit because there is a lot of red tape.

The institute’s report reads: “Current licensing processes are often costly, very lengthy, bureaucratic and inaccessible to many South Africans. So these small-scale users are obliged to apply for a permit and criminalised without a permit but practically unable to obtain a permit.”

Janse Rabie, the head of natural resources at AgriSA, agrees that red tape “is certainly an obstacle for small farmers who want to elevate to the commercial level”, forcing them to obtain water “under the radar”.

One of the authors of the report, Barbara Schreiner, from the advisory group Pegasys Institute, says one of the implications of having no legal right to water is that small farmers can’t compete if the resource becomes scarce. Furthermore, small-scale farmers can’t go to the banks to get affordable loans because their risk profile is too high and they might be operating illegally, says Schreiner.

Legal authorisation enables farmers to limit risk to their businesses, because it may become difficult to sell or redevelop their property if they are not fully compliant with the National Water Act.

Matlala says the system hampers the competitiveness of farmers because they will not be able to make any significant increase in terms of their yields. “Water in farming is like gold in the mines. I will never buy a farm if there is no water.

Besides depending on rainfall and boreholes, most farmers get their water from irrigation schemes (shared distribution systems) which rely on mountain streams or adjacent rivers. Of all registered South African dams that hold a capacity of over 1 000 mega litres (a thousand litres), the majority are government-owned (marked blue).

According to data from the Department of Water and Sanitation, municipalities, irrigation boards and government departments together own 332 dams with capacities over 1,000. The number of privately-owned dams (marked green) above this capacity is 277. Of these dams, the government owns 29,938,892 megalitres and the private sector 2,146,159.

“If farmers do not have access to water, tell me how we are going to make a contribution to South African agriculture in terms of our own production and competitiveness. This is farming. It matters not if you are white or green. This is farming.”

What the water law says

The water and sanitation department’s website says water-use registration is required for it to know where and what water is being used.

The department further notes that the current permit system is a prerequisite to determine its water pricing strategy. “Once registered, water users will be charged for the water they use.”

It adds that “any person who contravenes any provision of subsection 151(1) [of the National Water Act] is guilty of an offence and liable, on the first conviction, to a fine or imprisonment for a period not exceeding five years.”

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Athandiwe Saba
Athandiwe Saba

Athandiwe Saba is a multi award-winning journalist who is passionate about data, human interest issues, governance and everything that isn’t on social media. She is an author, an avid reader and trying to find the answer to the perfect balance between investigative journalism, online audiences and the decline in newspaper sales. It’s a rough world and a rewarding profession.

Jacques Coetzee
Jacques Coetzee
Jacques Coetzee is the Adamela Data Fellow at the Mail & Guardian, a position funded by the Indigo Trust.

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