Environmental rights

• DOI: 10.10520/EJC34827
• Published date: 01 January 1997
• Date: 01 January 1997
• Pages: 85-97
• Author: M. Kidd

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Environmental Rights

Michael Kidd *

The most significant events during the period under review were the

enactment of the National Water Act 1 and the National Environmental

Management Act.2 Other than the development of the policy upon which

these Acts were based, there were no significant developments for

environmental rights during 1997.

The National Water Act 36 of 1998

The 1996 Constitution provides that everyone has the right to have access to

sufficient food and water. This was clearly one of the guiding forces behind

the development of the new water law for South Africa, given that the old

law’s principles relating to access to water were inequitable. The

discriminatory laws and practices of the past are recognised in the preamble

to the National Water Act, where it is also asserted that the national

government has overall responsibility for and authority over the nation’s

water resources and their use, including the equitable allocation of water for

beneficial use. In addition, it is recognised in the preamble that the ultimate

aim of water resource management is to achieve the sustainable use of water

for the benefit of all users.

Under the old water law, allocation of water was based primarily on a

riparian rights system, which meant that rights to water were concentrated

primarily with white landowners. The majority in the country were seriously

underendowed as far as access, or at least convenient access, to water was

concerned. This has been addressed in the new Act by means of the

‘Reserve’, which consists of two parts: the basic human needs reserve and

the ecological reserve. In terms of the preamble to section 16, the basic human

needs reserve provides for the essential needs of individuals served by the

* B Comm LLB LLM (Natal). Senior Lecturer, University of Natal, Pietermaritzburg.

1 Act 36 of 1998

2 Act 107 of 1998