Day Zero Plans had to happen years ago, Cape Times, 2nd Feb 2018

​Dear Ed,

Day Zero Plans had to happen years ago, Cape Times, 2nd Feb 2018

I refer to the above article published by your newspaper last Friday in which your correspondent Lisa Isaacs refers to a 1990 report by the apartheid-era Water Commission. It appears the report warned, as did a similar Commission again in 2012 that water supplies would ‘dry up in 17 years’.

The article goes on to mention the late Barry Streek and what appears to be the first record of the issue in your paper during the early 90s. Unfortunately, the writer appears to be uninformed and disingenuous in suggesting that Streek and thus the racialised Water Commission, were the first to write anything at all about the coming water crisis.

I therefore wish to assure your readers that the anti-apartheid movement took a keen interest in water rights, with Earthlife Africa, itself then a newly formed environmental justice organisation, issuing a similar warning. Earthlife Africa “called on the city council to implement a holistic, integrated water management plan for the South West Cape.” The article was published under my own byline in January 1991, during the dying days of apartheid and thus in the runup towards the very first National Conference on Environment and Development and subsequent democratic election, where our constituent assembly proceeded to include the right to sufficient water as a fundamental human right.

The crisis in which we find ourselves today has its root in successive failures by the government and City management to come to grips with climate change. The events which are now occurring were indeed, predicted to occur over the second decade of the new millennium, as was reported not simply by Streek, but also by myself writing in the struggle press and thus subsequent issues of South EcoAction.

Mitigation solutions placed on the table by environmentalists and activists back then, were inter alia, recycling water, desalination and towing icebergs. Instead of playing down such interventions, people should have listened and paid more attention to what the science and evidence provided by ecologists were saying.

Far from being a liberal affair, the history of water usage and the development of water rights in South Africa pre-dates both colonialism and the apartheid state. It it thus pure revisionism on Isaacs’ part to quote the apartheid Water Commission’s own. One should rather turn to DD Tewari of the School of Economics and Finance, of the University of KwaZulu-Natal who in his analysis of water rights thus states: “Prior to colonisation of South Africa, African customary law governed water rights in the pre-colonial society.” Water allocation here was based, not upon ideals of the sovereign individual, rather once contested, ‘it was for the community to decide upon the fair allocation of water.’

The arrival of the Dutch and thus Roman-Dutch law at the Cape in 1652, saw the application of Roman water law, “a primitive system … used to regulate the legal relationships within the farming community along the Tiber River in the Roman Empire about 2 000 years ago.” Roman law as any law student can tell you, recognises 3 classes of water rights: private, common, and public. Significantly the establishment of Dutch control of water resources in the Table Bay Valley came in two phases, Tewari says, first ‘the granting of entitlements from streams in which colonists took control of the streams’, and the next phase in which they declared absolute ownership or ‘eminent domain’ over the water and the land’, as their ‘expansion of sphere of influence’ broadened.

The British period saw the “engineering of change” in all areas including water rights regulation. Whereas during the earlier Dutch rule, water was a very scarce resource relative to land mass and hence Dutch colonists made laws to regulate water use in the interests of the Company. Tewari says “by the time the British came into power, land had become relatively scarcer than water as a result of increasing immigration from Europe and the increasing populations of Trek-Boers and native Africans. All developments in water rights during the British regime thus reflected the predominance of land or agriculture (land-intensive industry) in the economy. Consequently, irrigation development played a major role in the moulding of early water policy, infrastructure, economic and social development in South Africa.”

The tragic situation in which ‘institutions created by the then governments intervened in the development of water resources in favour of the White agricultural community’ played itself out, even through successive periods of drought. While Tewari sees the movement of what became known as ‘riparian rights’ away from the company and state control, towards individual white farmers who could sue those possessed of entitlements upstream, he noted the return to earlier state hegemony and control during the apartheid period.

In 1950, for instance the landmark Commission of Inquiry into Water Matters known as the Hall Commission, was formed to look into drought conditions affecting parts of the country and thus also the general lack of water amongst the population. As a result, the Water Act of 1956 replaced the Irrigation Act of 1912. In brief, the new Act moved away from the riparian rights principle, “which worked well as long as water was used primarily for agricultural purposes” and back again towards the earlier enunciation of eminent domain status ‘of the state through government control areas’. Tewari says: “The distinction between the public and private water from the previous Act was retained and refined further. The idea of public water and its classification into normal flow (which would be divided between the riparian owners) and surplus flow (where, in flood times, riparian owners could take as much surplus as they were able to use beneficially), which was introduced in 1912, was further improved.”

Your correspondent fails to make the point so elegantly put by Tewari: “The colonial water rights policy excluded the Africans who could not compete in the land markets freely and also did not have the resources to do so where such access was possible.” While it is unnecessary to repeat the swathe of legislation and many rules depriving black South Africans of water rights, one feels duty bound to add that it was the environmental justice and anti-apartheid movement and its allies, which sought to correct the imbalance of history. The result is article 24 which celebrates the rights of our Earth viz. vi. the needs of future generations, and article 27 which presents a challenge to both the City and the state in the right to sufficient water for every citizen.

That we are living in a period of water crisis today is due in part, to our nation’s forgetting its genesis in a rights-based culture. Only by remembering our collective history can we hope to survive and surmount the future challenges presented by climate change.

Sincerely yours

David Robert Lewis

[Letter unpublished due to the religious nutjobs bigots & apartheid denialists at the Cape Times]

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