The role of courts in promoting water security in South Africa

Abstract

The right to sufficient water is a basic human right which is central to the realisation of all other human rights. Twenty-five years into South Africa’s democracy and twenty-three years after the adoption of the Constitution of the Republic of South Africa, 1996, which expressly guarantees a justiciable right to access to sufficient water to everyone, a significant number of citizens remain without access to potable water. This state of affairs is attributed to the legacy of the Apartheid government’s inequitable distribution of water resources, the present model of water commercialisation by municipalities, the dismal state of the water services infrastructure in many parts of the country, pollution, the competing demands of industries such as mining, and the effects of climate change, which are manifested through prolonged droughts. These factors suggest that water security remains a major challenge for South Africa. The term "water security" refers to the capacity of South Africa to safeguard the provision of sustainable access to adequate quantities of water of acceptable quality to meet the human needs of the population (in a broad sense) and to preserving the ecosystem. The attainment of water security in South Africa calls for strategic and concerted action from the country’s three spheres of government and its organs of state. This study explores the role which courts could play in promoting water security in South Africa. This research is the first integrated scholarly attempt to interrogate the role that could be played by courts in promoting water security in South Africa. Based on a critical and integrated analysis of primary and secondary sources of law, the study argues that courts could contribute to promoting water security by discharging certain duties: Firstly, the courts must uphold the applicable law by weighing the rights and interests that relate to water, and must then make reasonable, just and equitable findings. Secondly, the courts must solve water-related disputes between parties by interpreting and applying the applicable laws and policies. It is submitted that by executing these two functions the courts contribute to a deeper understanding of the water security discourse through the analysis, interpretation and explanation of water law and policy. Finally, it is argued that through the execution of their traditional function courts contribute to the making of law that has a direct effect on the development of water security. This research argues that water security will be attained when all South Africans have sustainable access to affordable water resources and when the country’s water resources are adequately protected.