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Compulsory Licensing Under South Africa's National Water Act

World Water Congress 2015 Edinburgh Scotland
15. Water law
Author(s): Michael Kidd (Scottsville)

Keyword(s): Sub-theme 15: Water law,


15 years after the commencement of the National Water Act 36 of 1998 (NWA), much water is still being used under existing lawful use rights -- i.e. lawful user of water at the beginning of 1999. Many of these rights holders are white farmers. The NWA envisages in section 43 the use of compulsory licensing to achieve a fair allocation of water from a water resource which is under water stress; or when it is necessary to review prevailing water use to achieve equity in allocations; or to promote beneficial use of water in the public interest; or to facilitate efficient management of the water resource; or to protect water resource quality. In a country where water stress is increasing and projections indicate that most areas of the country where there is currently a surplus will be in deficit within a few years, and where there is much pressure to increase equity (i.e. racial transformation) in the allocation of water rights for productive use, the role of compulsory licensing will become ever more important. This paper analyses the compulsory licensing process, considers the three case studies where it has already been used (in the Tosca-Molopo, Jan Dissels and Umhlathuze catchments), and draws from these three studies to make some observations about future compulsory licensing processes.

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