This 4500-pages work was completed in 2007. Only two sets of 6 volumes each were printed: one set for the office of the Minister of Water Affairs and Forestry, and another set for the author.
A searchable CD with all 4500 pages can be ordered from Fontes Juris (Pty) Ltd @ R750.00. It contains the full texts of 386 water law judgments, commentaries and indexes, PLUS a printed 193-page booklet with summaries of the cases.
The scope of Water Law of South Africa 1912-1998 is best illustrated by the TABLE OF CONTENTS, the author's FOREWORD, and an article which appeared in the journal Water Wheel.
TABLE OF CONTENTS
1. WATER LAW CASES 1912-98
1.1 Chronological List
1.2 Alphabetical List
1.3 Texts of the Cases
2. WATER LEGISLATION 1912-98
2.1 Chronological List
2.2 Alphabetical List
2.3 Texts of the Legislation
3.1 INDEX OF CASES NOTED
3.2 INDEX OF LEGISLATION NOTED
3.3 LITERATURE INDEX
3.4 SUBJECT SYNOPSES
The Scope of the Work
"Water law", for the purposes of this work, means every general South African rule of law concerning water.
The Sources of our water law can be found in:
CASE LAW, namely the judgments and orders of the supreme / high courts, including the water courts;
LEGISLATION, namely Acts of Parliament and the notices and Regulations published under them; and
LEGAL LITERATURE, namely books and articles which set out and explain the rules of our common law and modern water law.
The Sources of water law should be easily accessible to everyone who has to research, apply or otherwise deal with any matter concerning water, such as the following: The Minister of Water Affairs and Forestry; the staff of the Department of Water Affairs and Forestry; Water Consultants (Technical and Legal); Judges and Magistrates; The Water Tribunal; Advocates, attorneys and other legal practitioners; The Department of Justice and its prosecuting authorities; Bulk users of water (local authorities, industries and farmers); Water management institutions under the current water law; and Water Scientists and Engineers.
Water Law Cases
Water courts were established by colonial legislation; were consolidated in the Irrigation Act, 1912; and were abolished by the National Water Act, 1998.
From 1912 to 1969 many water court cases were reported in South Africa, but these reports have been out of print for many years. Other cases on water law are scattered in the general law reports.
The Water Research Commission (WRC) commissioned Advocate Maritza UYS to collect and edit the 1970-98 water court cases and other high court cases on water law, and to translate the many Afrikaans judgments into English.
In 2004 she reproduced the 1970-98 water law cases under the title Water Law of South Africa 1970-98 (WRC Project No K8/544). In 2006 she reproduced the 1912-69 water law cases under the title Water Law of South Africa 1912-69 (WRC Project No K8/622). And in 2008 she produced a consolidated an edited version of all the water law cases under the title Water Law of South Africa 1912-98 (WRC Project No K8/683).
Water Law Legislation
Water Law of South Africa 1912-98 also contains (in Part 2) the original texts of the two general water Acts which were current during the period, namely the Irrigation and Conservation of Waters Act 1912 (Act 8 of 1912), and the Water Act 1956 (Act 54 of 1956). The 1956 Act repealed the 1912 Act and the 1956 Act was in turn repealed by the National Water Act 1998 (Act 36 of 1998). Part 2 includes the texts of the Acts which amended the 1912 and 1956 Acts and the main Regulations issued under those Acts.
From these texts one can therefore reconstruct any provision in the Act and regulations as it was at any date in the past.
Water Law Literature
It has been many decades since any publication was devoted exclusively to South African water law. Water law literature is now to be found only in general publications or as articles on selected topics in law journals.
Therefore Part 3 of Water Law of South Africa 1912-98 lists the South African water law works published from 1912 to 1998, and other water law works noted in water law cases.
The enormous quantity of data on water law produced from 1912 to 1998 – most of which has now been collected in this work – had to be properly indexed to be of use. The indexes therfore list the Cases, Legislation and Literature noted in Parts 1, 2 and 3.
The index of subjects is called 'SUBJECT SYNOPSES', consisting of mini-articles on many of the main water law concepts. It is almost a Water Law Encyclopaedia and differs from usual Subject Indexes which are simply lists of words and sub-words with page references.
Future Water Law Publications
Note that Water Law of South Africa 1912-98 does not deal with two important parts of South African water law, namely the pre-1912 water law and the post-1998 water law.
It becomes obvious that the pre-1912 water law is still important when one refers to the CASES Index, which shows that the courts extensively referred (and still refer) to pre-1912 cases, legislation and literature (including the common law). The pre-1912 sources are even more difficult to access than those produced after 1912, and their systematic collection and reproduction is much to be desired.
For practical purposes the post-1998 water law is the most important part of our water law because it is the current law: the National Water Act 1998 (Act 36 of 1998) and the Water Services Act 1997 (Act 108 of 1997) now form the basis of our water law.
It is to be hoped that a sponsor will come forward for the research and publication of the above parts of South African water law.
ARTICLE in Water Wheel
In the May/June 2008 edition of Water Wheel there appeared the following article by Lani van Vuuren under the title Water Law Publication a First for SA
“The new water law compendium, published by the Water Research Commission (WRC) is proving [to be] a valuable legal resource in the implementation of the National Water Act, 1998 (NWA).
The publication of Water Law of South Africa 1912-1998 captures nearly 400 water court cases handled by the legal system from 1912 to 1998.
The work is authored by water law expert Adv Maritza UYS and took almost four years to complete. 'Water law' is concerned with persons' rights to water and concomitant duties of others. Water courts were established by colonial legislation, consolidated in the Irrigation Act 1912, and abolished by the NWA in 1998. All cases dealing with the then current Water Acts (Irrigation Act 1912 and Water Act 1956) and the common law on water, are included in the publication.
Interestingly, the first case captured in the compendium is dated 21 February 1912. It involved the case of Koffyfontein Estates Ltd (a diamond-mining company) versus Havenga (a farmer) about rights to the water of the Riet River.
Also included are the texts of the 1912 and the 1956 Water Acts, and the regulations under them up to 31 September 1998 when the NWA came into effect.
According to WRC Director: Water Resource Management, Ms Eiman Karar, the compendium is meant to fill the need of a legal source for use during the implementation of the NWA, and specifically for determining existing lawful water uses, as defined in the Act.
She said that, during the investigation of this research, it was realised that, although certain important water court judgements had been published before 1970, they did not provide adequate data for the utilisation of the various phases and processes for the implementation of the NWA. She explained that the reason was that the justification for codification had changed.
Before the NWA, judgments were used firstly by parties to vest their rights and, secondly, to report cases of special importance to the judiciary in the interpretation of the water law. Under the 1998 Act, however, a complete record of all water cases is required in order to determine existing lawful water uses for the establishment of water use entitlements under the new Act; to understand the water law of the previous dispensation; and to facilitate continuity of water use and water resource development and management.
Most water law cases were decided before 1956, when water users relied heavily on the courts to establish and declare their water rights, mainly because the water law was a statutory system and not an administrative one. After the Act of 1956, the Minister of Water Affairs increased his control over water sources by the declaration of 'government water control areas'. In these areas water was administratively allocated, which had a huge effect on the role of the Water Court to determine water rights.
The present Department of Water Affairs & Forestry (DWAF) is finalising the registration process under section 34 of the NWA and also the verification procedure. To verify existing lawful water uses, DWAF and its support practitioners will rely heavily on established rights and will need legal sources to prove the existence thereof. After verification, the even more onerous task of compulsory licensing will follow, which will once again rely heavily on historical water rights.
Ms Karar said that a well-recorded case register and publication of judgements will form one of the most important sources of both these processes to make the era of equitable distribution of water entitlements in the quest for redress in water and land allocations in South Africa.
The Minister of Water Affairs and Forestry, Ms Lindiwe HENDRICKS, has welcomed the compendium: 'This is a valuable contribution from the WRC as being an outstanding knowledge dissemination initiative for the benefit of all users. Equity and redress are cornerstones of the NWA which signals an end to any discrimination in the allocation of water. To be able to rectify [mistakes] of the past, we need to be fully aware of the history and learn from it. This publication seeks to create a historical perspective of water laws in South Africa, and will be a vital resource for future planning scenarios.'
Ms Karar commented that it is expected that water allocation practitioners and the Water Tribunal will find this addition a valuable one which fully justifies the investment made.”