Mooted ban on water rights trade will hit small farmers

Mike Muller

WHILE delegates to the African National Congress’s (ANC’s) national general council sweat through the conference proceedings this week, let’s hope that they give some thought to Mrs Mokwena’s tomatoes.

It is difficult enough to grow a crop that matures at the right time to get a good price while keeping the fungus at bay and the birds away. You worry about hail and thieves. And, of course, because this is SA, you worry about water.

If you are lucky, like Mrs Mokwena in Mpumalanga, you have a canal running past your small plot, which serves a few dozen fellow farmers. The water in that canal is your crop’s lifeline. You have a share, enough to water your two hectares and, in a good year, it provides all you need.

True, the little diesel pump you use to get water from the canal to the field may give problems — and fuel is quite expensive — but if you get a reasonable price for the tomatoes, you can make a good profit.

That’s why the proposal that is in an otherwise very lightweight section about water in the ANC’s national general council social transformation discussion document is worrying. It suggests, among some other more sensible proposals, that the government should ban trade in water rights.

That repeats a resolution first taken by the 2012 ANC conference that stated baldly that: “There shall be no form of temporary or permanent trading between authorised water users. It will be obligatory for any holder of an entitlement to use water which is no longer utilised to surrender such use to the public trust (the state).”

What would that mean for Mrs Mokwena, if this heat wave continues and water supplies are restricted in the face of a drought? Her tomatoes will need all the water that she would normally get. But if her allocation is cut by 50%, which is normal in a dry year, she will lose half the crop.

Previously, she could have talked to other farmers along the canal. Someone will always be waiting to plant a different crop; or perhaps just “resting”, as some of our farmers do in seasons when there are no obvious opportunities for profit. But if there is no water trading, they won’t want to do a deal to allow her to use their water on her fields. They would be scared of losing their allocation. As a result, Mrs Mokwena will probably lose half her crop and her farming business with it.

So why propose such an obviously damaging policy? There is continued unhappiness in some political circles about the belief that the country’s water is “owned” by a small group of private individuals, mainly white farmers.

Earlier this year, Mlungisi “Lulu” Johnson, chairman of Parliament’s portfolio committee on water and sanitation, warned there is “an issue”, asking “to what extent water is owned by the public sector and the private sector, respectively”.

Committee member Thomas Makondo wanted the Department of Water and Sanitation to provide figures on dams, including those built by farmers, and explain how the issue of ownership was being dealt with.

What our parliamentarians don’t seem to understand (and what ministers and officials have apparently failed to explain) is that you cannot “own” water, you can just use it. They also are apparently unaware that the government already has the power to regulate water use as a public trust, in the public interest.

So let’s be clear: just because there are dams does not mean that people own the water in them. SA has an arid climate — more water evaporates than falls as rain.

That rainfall is variable and unpredictable, so infrastructure such as dams is needed to transform this risky and unreliable rainfall into regular water flows that can sustain our society.

Those dams are there so that we can have a predictable supply when it is needed, even during the dry season.

There is the Vaal Dam (and a lot more) to supply Gauteng; Theewaterskloof and others for Cape Town; Inanda, Midmar and Albert Falls taking care of Durban and surrounds; the list is a long one. And there are dams on irrigation schemes and individual farm dams for the same purpose.

But whether it is national government, local municipalities, mines or farmers that build dams, the whole country can benefit from the guaranteed flows they provide to supply people, provide food and support the economic activities that produce the taxes that fund public programmes.

Without those dams, the water in the rivers will quickly pass by the farms and be gone forever. Someone downstream may use it. But, like more than 60% of the water in SA’s rivers, it will simply flow to the sea. And water can’t be hoarded like gold or grain. If you keep water in a dam without using it, it will simply evaporate or sink away into the soil.

So the real issue is not who owns the water in the dams but whether we, as a country, are able to use our limited water resources efficiently, effectively and equitably. With this in mind, Parliament passed the National Water Act more than 15 years ago, giving the national government control over the use of the nation’s water resources. That law requires the Department of Water and Sanitation to review how much water there is, who uses it, and, if there are new users who need to be accommodated, to reallocate it accordingly.

Equity considerations are high on the list of factors that must be taken into account. A complicated but fair process that has already passed constitutional muster is set out to do that.

Unfortunately, the officials responsible have so far not been up to the task of working out, along each river, who uses the water, under what conditions. But rather than admit that they have failed to implement the law, they are now blaming “water trading” for the fact that the face of water use has not changed very much. And, in the national general council’s social transformation document, they propose to spend the next 15 years amending it.

But the good news is that the council’s economic transformation document takes a much more practical approach. The question that must be answered, it says, is how to “leverage the people’s assets (including water) to best catalyse economic development and transformation”.

This document is complemented by the rural development and land reform document, which proposes to bring land and water reform together. This makes sense as there is no point allocating water to people who can’t use it — particularly if it leaves people like Mrs Mokwena high and dry — and bankrupt. So, for her sake, and for the country’s, let’s hope that the cool heads prevail in Midrand this week and that we concentrate on using water better rather than stopping people from using it at all.

Just because there are dams does not mean that people own the water in them

Muller is a visiting adjunct professor at the Wits University School of Governance and a former member of the National Planning Commission and director-general of the Department of Water Affairs.