Public trusteeship and water management: developing the South African concept of public trusteeship to improve management of water resources in the context of South African water law

Doctoral Thesis


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University of Cape Town

South Africa is faced with extraordinary challenges when it comes to managing its water resources. To redress the results of discrimination caused by Apartheid and its political antecedents, the modern constitutional state sought to address the issues of access to water resources and sanitation services by introducing section 24 of the Constitution, which provides for the right to an environment that is not harmful to one's health or well-being. In addition, section 27 seeks to entrench the right of access to sufficient water. Consequently, the National Water Act 36 of 1998 was introduced, which caters for the administration of water resources. The Water Services Act 108 of 1997, which seeks to ensure the provision of water and sanitation services completes the statutory framework. This framework provides for the state to be either the trustee or the custodian of our water resources. However, the terms 'trustee' and 'custodian' are not defined by either statutes. The legal framework nevertheless sets the parameters for state trusteeship and/or custodianship. This may be gleaned from the constitutional provisions, the National Water Act and the Water Services Act, as well as their accompanying regulations and policies. Despite oversights and inconsistencies, it is argued, the legislative framework very clearly provides the statutory content of trusteeship and custodianship. The state is expected to manage water in accordance with the prescribed constitutional mandate. The nature of the terminology used in the legislation has prompted a comparison by academic authors of modern trusteeship with the Roman and Roman-Dutch law classifications of res publicae. Alternatively, the public trust doctrine has been used as a comparator for evaluating the functioning of trusteeship. However, there are numerous problems with both of these comparisons. Neither facilitates a clear, meaningful understanding of trusteeship or custodianship. The thesis set out here is that, as trusteeship and custodianship are both statutory creatures, the nature of their content must be sought in the legal framework itself. In particular, the National Water Resource Strategy provides insight into the duties of the state. The Strategy aims to give effect to this legal framework, and provides that there are three values that water management aims to achieve: sustainability, equity and efficiency.

Includes bibliographical references.