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The Constitution and our Water Source Areas

Section 24(b) of the Constitution provides that “everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation [and] promote conservation” As an important element of our natural environment towards which government has a Constitutional obligation, section 27(1)(b) of the Constitution provides that “everyone has the right to access to water” and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.”

Furthermore, both the National Water Act and the National Environmental Management Act provides that the state holds water resources, and the environment, in public trust for the people. Section 3 of the National Water Act provides that the Minister is the public trustee of the nation’s water resources, and that the Minister must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its Constitutional mandate. Section 2(4)(o) of the National Environmental Management Act provides that “the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.”

Government has indeed succeeded in drafting commendable, environmentally sound legislation which gives effect to its Constitutional mandate highlighted above. However, further to this is government’s constitutional mandate to take broader, more practical steps (i.e. other measures) towards progressively realising these rights. A strategic and necessary step during a time in which South Africa is facing a drought and many of its areas are being declared drought disaster zones, coupled with the fact that water is a scarce commodity which is irreplaceable in nature, it has become increasingly important that the relevant Ministers prioritise the protection of our water source areas. Since comprehensive scientific research and assessment have shown that water source areas are essential for the realisation of these rights, taking steps to protect them is a Constitutional imperative.