/ 31 May 2023

SA needs clear law to protect strategic water source areas

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Gauteng water users need to use water ‘more carefully and efficiently’, says water expert. (Delwyn Verasamy/M&G)

South Africa is a water-scarce country. The climate crisis is exacerbating our water woes as climate change affects the availability and quality of water to meet basic human needs. 

It is therefore imperative for the government to put in place effective measures that will protect our strategic water resources and ensure water security of the nation. But what does protecting the country’s water resources entail?

Why we need protection

Most water used in South African cities, towns and agricultural areas, comes from strategic water source areas (SWSAs). They make up only 10% of the land area while generating 50% of the volume of water in our river systems.

Although SWSAs are critical to national water security, they do not enjoy formal legal protection. This has led to SWSAs facing various threats such as biodiversity loss, degraded ecosystems, acid mine drainage from coal mining and water use by large plantations. 

Without formal legal protection of SWSAs, these threats persist and compromise our water security. This is because most of our SWSAs are situated in the headwaters of rivers, so harm there has a disproportionately large impact downstream.

Decades of scientific research has resulted in government policy documents, such as the national water resources strategy and water and sanitation master plan, recognising the importance of these areas for the nation’s water security and the need for their protection. 

However, policy alone has proven to be an ineffective mechanism to protect SWSAs from development activities that are detrimental to water resources. 

For instance, the Enkangala Drakensberg strategic water source area supplies water to the economic hub of Gauteng, towns in Mpumalanga and the agricultural sector in the Free State and KwaZulu-Natal. Coal mining is a major threat to this SWSA as it overlaps with 45% of the coal fields in Mpumalanga — yet only 1% of this SWSA is formally protected. 

The Enkangala Drakensberg SWSA is home to the Mabola, which is a protected environment due to its biodiversity and hydrological importance. This declaration provides a level of formal protection to a small part of this SWSA. However, despite this recognition the area is constantly under threat from coal mining — an activity with particularly egregious impacts on water. 

Unlike other regions declared under the Protected Areas Act, commercial mining can occur in a protected environment provided the ministers responsible for environmental affairs and for mineral resources grant permission. Mining companies persistently apply for mining rights within Mabola, but many applications fly under the radar, without proper public participation. Sometimes, companies begin mining without the prescribed licences. 

Despite the impact of coal mining on water resources and the recognition of the importance of SWSAs in policy documents and spatial development frameworks,  authorities either disregard government strategies, policies, plans and frameworks, or cannot enforce them.

It is clear that recognition of the strategic importance of SWSAs is not enough. A more effective form of protection is needed so decision-makers faced with water intense development applications in SWSAs refuse those applications. This form of protection will only come from legislation. 

Formal legal protection of SWSAs will also provide aggrieved communities with legal recourse and a stronger basis to enforce their rights.

The legal protection of SWSAs is a constitutional imperative. Section 24 of the Constitution gives everyone a right to a healthy environment and to have the environment protected for present and future generations. Section 27 of the Constitution goes further to say everyone has a right to access sufficient food and water. 

The availability of, and access to, clean water as well as the protection of the nation’s water resources for the benefit of present and future generations is central to the protection and realisation of our rights. A failure to do so is an infringement on people’s rights and their future.

How do we protect SWSAS?

The strategic importance of SWSAs to our water security and the fact that they need to be formally protected in legislation is clear. Existing work to identify specific threats to each of the SWSAs needs to be enhanced and then legislative measures used to protect specific SWSAs from specific threats.

For example, Section 24(2A) of the National Environmental Management Act 1998 empowers the minister for environment to prohibit or restrict the granting of environmental authorisations for certain listed activities in specified geographical areas if it is necessary for the protection of the environment, the conservation of resources or sustainable development. 

For instance, where coal mining has been identified as a major threat to a specific SWSA, such as Enkangala Drakensberg, the minister could use her powers under Section 24(2A) to prohibit or restrict coal mining in that SWSA. This will protect the water resource by ensuring that coal mining is not authorised in that area. It will also give certainty to coal mining proponents who would not apply in that area, thereby relieving the strain on licensing officials.

The National Water Act 1998 is undergoing legal reform, which presents the opportunity to include the legal protection of SWSAs. This could be done either through a declaration provision which provides for the prohibition or restriction of certain activities in SWSAs or the introduction of a new chapter dedicated to SWSA protection. 

As the Water Act deals with water regulation and management, it is appropriate that the legal protection of SWSAs is dealt with there, perhaps with the introduction of a provision akin to Section 24(2A) of NEMA.

It is important to note that the aim of protecting SWSAs is not to prohibit all development activities in every SWSA. Rather it is to ensure that developments are compatible with the hydrological sensitivity of the area and do not threaten national water security. 

Efforts to protect SWSAs are underway. However, it has been 10 years since the first SWSA report was published. In that time, we have seen a rush on coal mining in SWSAs while witnessing the impacts of climate change on water. 

Many South Africans are suffering from the damage and loss caused by drought and floods.  Accelerating the legal protection of SWSAs must be a priority for our government  as a critical tool to building the country’s resilience to climate change. This will elevate South Africa’s water security and protect people’s rights. 

As we implement change in our water sector to mitigate and adapt for climate change, only proactive legal protection of SWSAs will be more effective. The government must accelerate efforts to formally protect SWSAs and introduce the necessary amendments in legislation to ensure the effective legal protection of critical water sources for the benefit of present and future generations.

Catherine Horsfield is an attorney and programme head at the Centre for Environmental Rights. Tatenda Muponde is an attorney at the CER.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.