The public trust doctrine in South African water law

Abstract

The legal principles pertaining to the water law dispensation of South Africa changed dramatically with the promulgation of the National Water Act 36 of 1998 (NWA). Section 3 of the NWA articulates the core of the new water law dispensation through the concept of public trusteeship. The study focused on section 3 of the NWA and the implications ensuing from its incorporation in the South African water law dispensation. Consequently, the dissertation's outline is based on the historical development of South Africa's water law regime. It was indicated that the previous distinction between public. and private water and South Africa's political history of Apartheid gravely impacted on the people's access to water resources. The legislature introduced the concept of public trusteeship to the South African water law with the promulgation of the NWA Through the statutory incorporation of the concept of public trusteeship, the state is given the. mandate, responsibility and mechanism to ensure that the country's water resources is protected, used, developed, conserved, managed and controlled in an equitable manner, for the benefit of all South Africans in accordance with the constitutional mandate. The concept of public trusteeship and its implication for water management was thoroughly scrutinised. The research indicated that the concept of public trusteeship emphasises the state's fiduciary responsibility to deal with the country's water resources and simultaneously separates legal and beneficial entitlements to water. It was further indicated that the public trustee introduced the concept of Integrated Water Resources Management (IWRM) as a legal framework through which water management can be executed. The research also focused on the impact of IWRM on the citizens of South Africa, especially the poor. It has been found that, through IWRM, the livelihoods of South Africans' can be approved, water conservation can be pursued, social equity can be promoted, sustainable development can be realised and economic efficiency can be reached.