Racial quotas for water use: Minister exceeds his powers

The civil rights organisation AfriForum has requested the Minister of Water and Sanitation, Senzo Mchunu, to immediately withdraw the proposed changes to water legislation that will require up to 75% black ownership of businesses that require a water use licence.

The revised regulations on water use licence applications that were published for public comment in the Government Gazette on 19 May 2023, will require that applications to license certain water uses will henceforth only be considered by the Department of Water and Sanitation (DWS) if the company applying for it meets certain racial quotas.

AfriForum is of the view that the proposed requirement to meet racial quotas, as envisioned by the revised regulations, is not only unlawful, but in publishing these revised regulations the minister has also acted outside the scope of his authority.

“The Supreme Court of Appeal has ruled that the need to remedy past racial discrimination is one of several factors that must be considered in a water use licence application. Giving preference to transformation above the other factors that must be considered in terms of the National Water Act (Act 36 of 1998), is inconsistent with the provisions of the Water Act. That is exactly what the revised regulations attempt to achieve. Thus, it seems like the minister is not only trying to ignore the act that grants him his powers, but also the Supreme Court of Appeal’s judgment,” says Marais de Vaal, AfriForum’s advisor for Environmental Affairs.

De Vaal further says that the Water Act does not afford the minister the power to regulate on the ownership of a water use applicant. By usurping the role of the legislator, the minister undermines the rule of law and the separation of powers as guaranteed by the Constitution.

Although the Director General of the DWS, Dr Sean Phillips, recently attempted to calm the storm around the proposed regulations by emphasising that the goal of the proposed regulations is to stimulate a conversation and for the public to voice their concerns, AfriForum is nonetheless of the view that the proposed regulations are patently unlawful and the legislative process should therefore be halted. With no reasonable prospect that the revised regulations would be passed by parliament, unnecessary and wasteful expenditure associated with the process must be avoided. AfriForum has therefore requested the immediate withdrawal of the revised regulations. Should the minister disregard the request, AfriForum will still take part in the public participation process and submit its commentary on the full set of regulations in accordance with the relevant timeframes.