A critical analysis of the development of water law in South Africa.

Abstract

This paper entails a critical analysis of the development of water law in South Africa. It examines the historical development process of the law, discussing the tendencies followed in Roman and Roman Dutch Law systems. The principles of water allocations which had been adopted into the South African law system by the courts and legislature is analysed. A review of the water allocation mechanism of the Water Act 54 of 1956 indicate that the water law thereunder is outdated, no longer reflecting the needs of our society. Especially since it was based on antique systems of water allocation derived from European countries where the climate and hydrology are different to South Africa. With the advent of a new democratic Government, the principles of fairness and equity as embodied in the Constitution, demanded that South African water law be reviewed. This mammoth task was undertaken by the Minister of Water and Forestry Affairs, Professor Kader Asmal. After a two year consultative period process, the National Water Act 36 of 1998 was enacted. The provisions of this Act indicate a radical departure from the previous system of water allocation.