Agri SA dissents from proposed Water Use Licence Regulations

SOUTH AFRICA – Agri SA, a South African federation of agricultural organizations, has submitted a proposed reformulation to the proposed Water Use Licence Applications, Amendment, and Appeals Regulations that were published on 19 May 2023.

The union, which consists of provincial, commodity, and corporate members, said the draft regulations published would have a potentially catastrophic impact on agriculture and the country’s food security.

The draft regulations proposed that certain enterprises applying for water use licences to take or store water, would in the future have to allocate shares of up to 75% to black South Africans in order for such water use licences to be granted.

Given the legal and food security implications of the regulations, it is essential that they are reviewed and substantially amended, Agri SA noted.

However, the Department of Water and Sanitation clarified that the new transformation requirements would only apply with respect to the 1.5% of water resources in South Africa which have not already been allocated.

The regulations are also not intended to apply to applications for the renewal of existing water use licences, or to the water use licence applications which will arise out of compulsory licensing.

The biggest agricultural organization in South Africa welcomed the clarification and has included the parameters in its suggested reformulation of the regulations.

Conversely, Agri SA argues that no provision in the National Water Act empowers the Minister to make regulations prescribing substantive requirements for licence applications or for the determination of licence applications.

It explained that even if such a power is inferred, the Act provides that, in issuing a licence, the responsible authority must take into account all relevant factors. T

his includes a list of 11 factors including efficient and beneficial use of water in the public interest, the socio-economic impact of water use, and investments already made by a water user.

The need to redress past racial and gender discrimination is one of these 11 factors. By law, when determining an application for a water licence, the responsible authority must strike a reasonable balance between all the factors.

Furthermore, the arbitrary and thus legally impermissible nature of racial quotas has already been established by court judgments. As the draft regulations do not allow for any element of discretion, they are so rigid as to be indistinguishable from a quota, and therefore invalid.

Agri SA concluded by saying that it is essential that the effort to build an inclusive agricultural sector does not undermine the country’s food production.

A week ago, the union also said it will table a submission to Parliament which demonstrates the negative impact of the national minimum wage on the growth and sustainability of the agricultural sector.

The union maintained that the increases of the minimum wage in the agricultural sector are aligned with inflation, there is a real risk of the agricultural sector contracting with devastating effects on employment in the sector.

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