Cape Town - Agri SA has said the Department of Water and Sanitation’s (DWS) proposed water-use licence applications, amendment and appeals regulations are promoting “legally impermissible racial quotas”.
Agri SA’s remarks were made in the organisation’s submission of its objections to the proposed amendments.
DWS Minister Senzo Mchunu published the revision of the regulations regarding the procedural requirements for water use licence applications in May.
The draft regulations said that businesses applying for water-use licences to take or store water would have to allocate shares of at least 25%, 50% or up to 75%, depending on the volume of water abstracted or stored or the area covered, to black South Africans before a water-use licence was granted.
However, Agri SA legal and policy executive Janse Rabie said given the legal and food security implications of the regulations, it was essential that they be reviewed and substantially amended.
Rabie said the arbitrary and thus legally impermissible nature of racial quotas had 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.”
He said including of women as a previously disadvantaged group should also be considered. Currently, only racial transformation goals are included in the draft regulations.
“Agri SA is all too aware of the historical imbalances that prevail in the farming sector today, but the sector must achieve equality within the rule of law,” Rabie said.
The DWS met with Agri SA and clarified that the new transformation requirements would only apply to the 1.5% of water resources in South Africa that had not already been allocated.
In a statement, DWS said that it would be willing to consider suggestions for amendments to the draft regulations to clarify this issue and encouraged Agri-SA to make written submissions on the draft regulations.
The department said it had comparative statistics drawn from issued water use licences to historically advantaged individuals (HAIs) and historically disadvantaged individuals (HDIs) since 1998. It said these showed a total of 412 million cubic metres of water had been allocated among the two groups, with 75.9% allocated to HAIs, and only 24% allocated to HDIs.