The South African Department of Water and Sanitation (DWS) has drawn scrutiny for rejecting a black farmer’s application to transfer surplus water rights to a white farmer, citing "transformation" objectives. AfriForum, a civil rights organization, filed an appeal, arguing the decision prioritizes race over legal and practical considerations, as detailed in their press release, AfriForum’s fight against race-based water rights continues. This case highlights ongoing disputes over the DWS’s use of racial criteria in water use licenses, raising concerns about legality, economic impact, and fairness.

The DWS’s rejection hinges on race, disregarding factors mandated by the National Water Act 36 of 1998, including efficient water use, socio-economic benefits, environmental impact, and alignment with catchment management plans. AfriForum contends this violates the Act and court rulings from the Supreme Court of Appeal and Constitutional Court, which state race is one of several factors, not the sole determinant. The decision also restricts the black farmer’s commercial autonomy, prompting accusations of paternalism.

Marais de Vaal, AfriForum’s Advisor for Environmental Affairs, called the DWS’s stance a disregard for the rule of law, noting its conflict with prior legal frameworks. Francois Rossouw, CEO of the Southern African Agri Initiative (Saai), argued that the policy threatens rural employment and local economies, risking jobs for permanent and seasonal workers in areas with high unemployment.

This case follows the DWS’s 2023 draft regulations, which proposed 25% to 75% black ownership requirements for water use licenses based on water volume or activity type. Published on May 19, 2023, these regulations aimed to address historical inequities but faced opposition for prioritizing race over other criteria. AfriForum, Agri SA, and the Western Cape Government criticized the proposals, leading to their withdrawal after public comment.

AfriForum has opposed similar DWS policies over the past two years, including:

- Reversing a race-based rejection of a temporary water use license transfer.

- Demanding corrections to the DWS’s online platform, which required Broad-Based Black Economic Empowerment (BBBEE) compliance.

- Opposing draft amendments to the National Water Act for explicit transformation requirements.

- Challenging proposed racial quotas and recreational water use regulations, both withdrawn after opposition.

Agri SA warned that race-based quotas could devastate agriculture, threatening food security by stripping viable farms of water resources, though they usually side with the government and hinder reform and criticism. Their 2023 submission cited a 2012 Supreme Court of Appeal ruling, emphasizing a balanced approach to water licensing. The Western Cape Government rejected the quotas, advocating a needs-based approach to avoid economic harm, given South Africa’s high unemployment rate.

Sakeliga, a business advocacy group, has opposed racial quotas in other contexts, and has contextualised the current wave of reforms as the "third wave" of BEE - the use of race-based licenses to shut minorities out of various markets. They have recently won victories in pushing back such practices in other areas, such as the real estate and property management sector.

The DWS defends racial privilege as necessary to avenge past practices, as mandated by the National Water Act. In 2023, it clarified that exemptions apply to mining companies, state entities, and 100% black-owned businesses, protecting elites connected to the ruling party.

AfriForum’s August 2023 report, Racialised legislation in ‘non-racial’ South Africa, critiqued race-based policies, linking them to corruption and inefficiency. It suggested growing public discontent, potentially strengthening AfriForum’s appeal. The case’s outcome could set a precedent for balancing redress with economic and legal considerations.

Legally, the DWS risks challenges, as prior court rulings reject arbitrary racial quotas. Economically, agriculture—a key sector—faces disruption, with Agri SA estimating impacts on exports and food security. The Western Cape Government highlighted job losses, while Rossouw noted risks to rural economies.

AfriForum’s appeal is pending, with the organization urging the public to report discrimination in water rights allocation. The DWS’s insistence on racial privilege persists, but legal and practical challenges mount, leaving South Africa’s water policy contentious. Stakeholders like AfriForum, Agri SA, and potentially Sakeliga advocate for efficiency and fairness over racial quotas, while the DWS defends its approach as essential for equity.

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