The minister of water and sanitation has been requested to immediately withdraw the intended changes to water legislation, which will require as much as 75% black ownership of businesses that require a water use licence.
The civil rights organization AfriForum made the request to Minister Senzo Mchunu and is of the opinion that the mandatory compliance with racial quotas that the draft regulations envisage is not only unlawful, but that the minister also acted beyond his powers when publishing them.
The revised draft regulations on water use licenses which will be open for public participation on 19 May 2023 in the government Gazette has been published, will require that applications to license certain water uses will henceforth only be considered by the Department of Water and Sanitation if the company applying for it complies with established race quotas.
“The highest court of appeal determined that corrective action is one of a series of factors that must be considered during a water use license application. If corrective action is given priority over other considerations that must also be taken into account according to the National Water Act (Act 36 of 1998), this is contrary to the provisions of the Water Act. However, this is exactly what the revised draft regulations seek to achieve. It therefore seems as if the minister wants to ignore not only the law that grants him his powers but also the appeal court’s ruling,” says Marais de Vaal, AfriForum’s advisor for environmental affairs.
De Vaal further says that according to the Water Act, the minister does not even have the power to issue regulations on the ownership of a business that applies for a water use licence. By assuming the role of the legislator, the minister undermines the rule of law and the separation of powers guaranteed by the Constitution.
Although dr. Sean Phillips, director-general of the department, recently tried to calm the storm that erupted around the draft regulations by emphasizing that the draft regulations only aim to stimulate a conversation and listen to the public’s concerns, however, AfriForum is of opinion that the draft regulations are so obviously unlawful that they should not even be taken further through the legislative process.
With no reasonable prospect of parliament approving the draft regulations, further time and expense should not be wasted on them. AfriForum therefore demands that the revised draft regulations be withdrawn immediately. Should the minister not comply with the request, AfriForum will still participate in the public participation process and submit its complete comments before the closing date.
