Critical reflections on existing lawful water uses (ELUs) in South African water law

Abstract

The National Water Act 36 of 1998 (NWA) introduced a new water law framework for South Africa. According to the NWA, all water uses must be authorised in terms of a water use licence, unless the water use constitutes a Schedule 1 water use, falls under a general authorisation, the need for a licence is dispensed with, or is recognised as an ‘existing lawful water use’ (ELU). This paper provides a critical analysis of the ELU concept within the context of South African water law. It explores the complexities and challenges associated with ELUs, including their validation, verification and registration, and also reviews recent case law that has helped to elucidate certain key aspects of ELUs. The paper underscores the necessity for more specific legislation to address these ambiguities and uncertainties. Additionally, it critically assesses the potential implications of the recently published National Water Resource Strategy III and the National Water Amendment Bill of 2023. This Bill proposes to abolish the right to declare an ELU, and to empower the relevant authority to impose conditions and/or obligations on ELUs as well as to curtail current ELU volumes.