The regulation of water in Namibia in the context of property rights : a comparison with South African water legislation

Abstract

The Water Resources Management Act 24 of 2004 will change the water regime in Namibia dramatically. Section 4 of the Water Resources Management Act provides for this change by excluding private ownership of water from the new water law dispensation. This study focused on section 4 of the Water Resources Management Act and the implication that this section will have on property rights in the Namibia. The dissertation firstly outlines the historical development of ownership of water in Namibia. It is indicated that private ownership of water was an established principle under Roman-Dutch law. A further examination of Roman-Dutch law reveals that surface water could be divided into private and public water. Public water belonged to the whole nation, while ownership of private rivers was vested in the land owner. Under South West Africa’s water legislation, the Irrigation and Water Conservation Act 8 of 1912 and the Water Act 54 of 1956 maintained the distinction between public and private water. However, the Water Act of 1956 expanded the definitions of both public and private water, and acknowledged that the land owner where the water found its source or flowed over, could exercise the exclusive use rights of such water. The Water Resources Management Act has been approved and published in the Government Gazette. However, it has not yet come into force as a date for commencement of the Act, as prescribed by section 138(1)(b), has not yet been determined by the Minister. Once the Act is in force, the Water Act will be repealed as a whole. Section 4 of the Water Resources Management Act will abolish the private ownership of water in Namibia. This is clearly in violation of article 16 of the Namibian Constitution of 1990, which provides for private ownership of water when read with article 100. Therefore, the research concludes that the Water Resources Management Act will dramatically affect property rights in Namibia. Under the Water Resources Management Act there will be no private ownership of water, and the affected person will have no recourse under the Act to claim compensation.