Access to and ownership of water in Anglophone Africa and a case study in South Africa

Hilmer J. Bosch
University of Amsterdam, Amsterdam; h.j.bosch@uva.nl

Joyeeta Gupta
University of Amsterdam, Amsterdam; j.gupta@uva.nl

ABSTRACT: Access to water can be through public, private or community 'ownership', that is, the riparian rights that are associated with landownership, payments, contracts, markets and permits; these rights are often institutionalised in (customary) legal systems. Most countries are now revisiting such ownership rules in the light of growing water challenges, but there is little systematic understanding in the scholarly literature of what these rules are and how they are changing. This paper thus addresses the question of what is the state of de jure and de facto ownership of water in Anglophone Africa? A review of the scholarly literature on water ownership is accompanied by an analysis of the laws of 27 Anglophone African countries and field work in South Africa. The paper concludes that even though in all the studied countries the state has put water in the public domain, there remain situations where water is de facto owned by different actors; these cases of private ownership stem from the difficulties of changing Existing Legal Use permits, the implicit recognition of long-term entitlements that are based on permits, and the likely requirement of compensation in cases where entitlements are expropriated. The implication is that, in fact, water can be owned and that the law does not preclude the development of property-like rights over water.

KEYWORDS: Water rights, property rights, water ownership, water governance, water law, South Africa