Impofu Dam. (File photo)
Draft revised regulations proposing racial quotas for black South African shareholding in water use licence applications are being cited on social media as being among the so-called “race-based laws” that allegedly discriminate against non-black minorities.
This was fuelled by US president Donald Trump’s executive order on 7 February cutting aid to South Africa because of “countless government policies designed to dismantle equal opportunity in employment, education and business, and hateful rhetoric and government actions fuelling disproportionate violence against racially disfavoured landowners”. Trump went on to offer refuge to Afrikaners.
Water resources scientist Carin Bosman said: “You can’t call something a law if it is a draft regulation … They are spreading fake news.
“If they don’t understand the difference between a draft regulation and a law, or if they don’t like how the process of law-making works, then they are welcome to please go to Trump’s America, go work in a Walmart and live in an apartment block that’s the size of your current stoep and go see how well you go there.”
The proposed water use licence applications, amendment and appeal regulations, which were published for public comment on 19 May 2023 under the National Water Act, suggested that certain enterprises applying for licences to take or store water would have to allocate shares of 25%, 50% and 75% black shareholding to be successful.
‘Clarifying statement’
A month later, the department published a clarifying statement that the transformation requirements categories only applied to applications for new water use licences and not to the renewal of existing water use licences.
With 98.5% of water already allocated, the transformation requirement categories would only apply to applications for the remaining 1.5%.
The water use licence regulations review “is on hold, awaiting the finalisation of the National Water Act Amendment”, Sanku Tsunke, a spokesperson for the department of water and sanitation, said this week.
In 2023, at the time of publication for comment, the draft revised regulations drew a backlash, with AgriSA warning that the water use stipulations focusing solely on ownership, to the exclusion of all other relevant factors, would “mean the loss (or partial loss) of water resources for numerous currently viable commercial farming enterprises”.
Civil rights group AfriForum at the time expressed its “disquiet” over the broad-based black economic empowerment requirements, saying by making it impossible to apply for a water use licence, “the racial aspect is elevated to the most important”.
Bosman, who, in her 2023 comments said the draft was not “conducive to good water governance”, this week said the claims by organisations who purport to speak for Afrikaners — namely that these draft regulations are an example of Afrikaner persecution — were disingenuous.
“This is draft legislation; everybody gets an opportunity to comment, and the department of water and sanitation gets a chance to go back to the drawing board and then they come up with a new regulation.
“Sometimes, we wait 10 years from a draft regulation to the final regulation because consultation needs to happen. That’s how the process of law-making works,” Bosman told the Mail & Guardian.
In July 2023, AgriSA, while welcoming the clarification, said it remained concerned that the draft regulations were not consistent with the relevant provisions of the National Water Act, the Equality Act and the Constitution.
It was essential that the effort to build an inclusive agricultural sector did not undermine the country’s food production, it said at the time, warning that if the draft regulations were passed as published, they would have a “potentially catastrophic” impact on agriculture and the country’s food security.
Janse Rabie, the legal and policy executive at AgriSA, said that in January last year, there were proposed amendments to the National Water Act and the National Water Services Act, the two principal pieces of legislation dealing with water management.
“Following the closing of the commentary period, the department needed to consider comments received and to decide whether or not to change the draft Amendment Bill.
“We were informed that the parliamentary portfolio committee would be considering a revised version of the draft Amendment Act towards the end of last year. We are still awaiting the notice on whether (and if so, when) the parliamentary portfolio committee engagements might take place.”
The department informed AgriSA that the draft regulations would be withdrawn until the finalisation of the proposed amendments to the National Water Act itself. The National Water Amendment Bill was circulated for comment, which it commented on.
“There were again major societal transformation and equity proposed changes included in the National Water Amendment Bill, including among others, that when a water use licence was going to be applied for, the transformation requirements would be the paramount consideration in whether to grant or refuse an application for a water use licence.
“That again brought into being, I suppose, the whole political dimension of radical social transformation. We called it ‘sledgehammer transformation’ in our comments.”
He said the 25%, 50% and 75% black shareholding requirements were only included in the draft regulations “so the Amendment Bill, which is a proposed change to the Act itself, didn’t have those specific references.
“What the National Water Amendment Bill proposed, however, was also significant transformation of the water sector, for example, by making social transformation requirements and HDI [historically disadvantaged individual] scores pre-eminent or the paramount consideration in granting water licences.
“They also want to do away with transfers of water use entitlements, which were also, according to the department’s version, being abused by commercial farmers, and making it impossible for HDI farmers to gain access.”
Prioritising the redress of past discrimination above all other considerations in granting water use licences is “unbalanced and unconstitutional”, AgriSA said.
Disconnected from reality
But, said Bosman, black economic empowerment (BEE) is not racist or discriminatory.
“BEE is to redress past racial and gender imbalances and anyone who wants to say BEE is racist, I refer them back to the protected employment classes implemented by the apartheid government between 1948 and 1994.”
Under the previous water legislation, the only people who could get access to water were white men. “Not even my white grandmother could get access to water until 1994. The [National Water] Act and the Constitution says we have to address the results of past racial and gender discrimination.
“How we do it; that’s up for debate. I have criticised the use of procurement BEE regulations under the procurement legislation for this purpose [the revised regulations on water use licence applications] but that doesn’t mean I think it’s racist.
“I just think they’re using the wrong tool … for determining redress for past water allocation imbalances, which goes way beyond race.”
In her 2023 comments on the revised draft regulations, Bosman said the department was under the “false impression” that all that was required to redress the results of past racial and gender discrimination “is % shareholding of the ‘enterprise undertaking the water use’, and that such a ‘quota system’ will ensure beneficial use of water in the public interest”.
This was “naive and languid” and entirely disconnected from the realities of South Africa’s society, where the unemployment rate was 43%, the youth unemployment rate hovered at 60%, and which correlated with the 47% of people that rely on some form of social grant.
“This implies that almost 50% of South Africans don’t have the means to obtain shares in a broad-based BEE company, and that 50% of South Africans don’t have the means to buy shares in an existing enterprise that uses water to produce food or goods.”
The proposed quota system therefore effectively excluded more than half of South Africans from benefitting from the issuing of a water use licence.
“The introduction of these ‘quotas’ is a very indifferent and blunt attempt at addressing injustices of the past, but in effect, it does not address any such injustices at all, and will merely lead to severe economic damage to a number of sectors, which will increase unemployment and deepen the hardships for the poorest of the poor.”
She said the racial make-up of the shareholding of an applicant for a water use licence was unrelated to the redress of past racial and gender discrimination through the authorisation of a water use by means of a water use licence.
A number of factors should be considered when determining whether a water use licence would redress the results of past racial and gender discrimination, which “goes way beyond the slothful consideration of only percentage black shareholding”.
She cited an example of a white farmer who had implemented ways to redress past imbalances by creating a bursary programme for his employees’ children who wanted to study agriculture and by employing black women to tend his litters of piglets. As a result, he obtained a water use licence, without external shareholding.
“It is strongly recommended that the department develop, based on existing tools for intersectionality, a discrimination index or scale that does not just focus on a single component (percentage of black shareholding), but that functions across multiple axes of institutionalised discrimination on the basis of race and gender to determine how the authorisation of a water use will redress such discrimination.”
Such a tool could then be used to give advantage to a poor black woman living in an area without water supply or sanitation services “above a rich level 1 broad-based BEE company where the children of the directors attend private schools in Sandton, for example”.