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Water Laws, Prior Rights and Government Apportionment of Water in Swaziland, Southern Africa*

Published online by Cambridge University Press:  28 July 2009

S. G. Heilbronn
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Extract

The countries of Southern Africa are facing growing demands for water, mainly generated by the requirements of agricultural and industrial development. An examination of the historical development of the water laws in the region indicates a trend towards increased government control over water rights. The extent to which rights that existed prior to the institution of government control are entrenched in, and protected by, new legislation is particularly worthy of study in respect of underdeveloped countries, where the traditional sector's developmental needs for water may only be recognised at a relatively late date. In the case of Swaziland, a series of broadly riparian water laws, and a primarily irrigated estate-based system of agriculture have led to a markedly unequal distribution of surface-water rights.

Type
Research Article
Information
Journal of African Law , Volume 25 , Issue 2 , Autumn 1981 , pp. 136 - 149
Copyright
Copyright © School of Oriental and African Studies 1981

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References

1 Legal and Institutional Responses to Growing Water Demand, 1977, 6. For a general introduction to the issues associated with the protection or abbrogation of prior rights, see L. Teclaff, ed. Abstraction and Use of Water—a Comparison of Legal Regimes, 1972, 206–224.

2 In South Africa, the Water Act No. 54 of 1956 included provisions in ss. 59 and 62 that enabled the declaration of Government Water Control Areas, wherein the rights to the use and control of public water would be vested in the Minister of Water Affairs. C. G. Hall and A. P Burger in Hall on Water Rights in South Africa, 1974, 8, note the existence of more than 100 such Control Areas. One major innovation of the Zimbabwean Water Act No. 41 of 1976 was the power given to the Minister of Water Development under s. 67, to declare Public Water Control Areas, wherein no rights to the use of public water would be granted by the Water Court without the authorisation of the Minister. Eleven river sections have so far been declared to be Public Water Control Areas (source: communication from A. G. Pilditch, Zimbabwe Department of Conservation and Extension, dated 2 October, 1980). In Botswana, the Water Act No. 40 of 1967 introduced a permit system for the initiation of most uses of water (Parts II and IV). Five Government Water Control Areas (hereinafter G.W.C.A.s) have been declared in Swaziland by virtue of s. 69 of the Water Act No. 25 of 1967, and these cover almost the entire country.

3 H. J. Richardson in “Global water law systems”, Vol. II, Consortium for International Development Conference Report, 1976, F-10, describes riparian rights as occurring when “The owner or occupier of land abutting on the banks of a natural stream is entitled to the use and enjoyment of the water flowing past his land as an incident of his ownership or occupation of such land”. A “riparian” water law will give preference to riparian-rights holders over anyone else who would wish to use water.

4 The extent of Swaziland's groundwater resources is still under investigation, but is thought to be insubstantial. At the moment, groundwater is used predominantly for domestic purposes by humans and for watering livestock. See “Swaziland country report to African preparatory meeting”, U.N. Water Conference, Addis Ababa, 1976, 2.

5 The Concessions Partition Proclamation No. 28 of 1907 provided for the setting aside of one-third of the land affected by any land concession (which concessions covered the whole country), for the sole use of the Natives (s. 3). In fact 1·6 million acres, or 37 per cent, of the total land area, was set aside. By 1980, figures obtained by the writer revealed that S.N.L. totalled over 2·5 million acres, or nearly 63 per cent, of Swaziland (excluding urban areas).

6 Proclamation No. 28 of 1907 (above, n. 5) also provided for the granting of Roman-Dutch law freehold title to holders of certain land concessions (s. 5).

7 Theoretically, smallholder irrigation has the ability to satisfy a number of developmental objectives—for example by increasing employment and production. Two recent studies have recommended investment in such irrigation projects—see U.S. Army Corps of Engineers, Swaziland: Water and Related Land Resources. Framework Plan Draft Report, 1980, and U.N. Food and Agricultural Organisation/Engineering and Power Development Consultants, Reconnaissance Irrigation Study, Lusushwana river, Swaziland—Technical and Economic Feasibility Report, 1980. There is no shortage of irrigable S.N.L.—estimates in the Corps of Engineers Report suggest at least 190,000 acres.

8 Research done by the writer indicates that irrigation accounts for 80 per cent, of the total quantity of permitted abstractors in G.W.C.A.s. Industry and domestic allocations account for 2 per cent., and the rest is reserved by the Government or allocated to two hydro-electric projects.

9 Proclamation No. 11 of 1910. Besides Roman-Dutch common law (which applied in Swaziland by virtue of Art. 2 (g) of the 1890 Anglo-Boer Convention and s. 3 (1) of Proclamation No. 4 of 1907), two Transvaal statutes existed which were law in Swaziland (by virtue of s. 3 (2) of the 1907 Proclamation No. 4, which made statutes in force in the Transvaal also in force in Swaziland). These were the Transvaal Water Law No. 11 of 1894 and the Transvaal Irrigation Survey Ordinance No. 67 of 1903. Since the first Swaziland Water Law was passed so soon after the 1907 Proclamation, these statutes need not detain us.

10 Transvaal Water Law No. 11 of 1894, s. 2 (see n. 9, above).

11 “Report of the Swaziland Water Commission”, 1909, XXVII, Official Gazette of the High Commissioner for South Africa, No. 397, 18 January, 1909, 27. The Commission pointed out that this principle was embodied in the Transvaal Irrigation Act No. 27 of 1908—see s. 47 (1) of that Act.

12 Op. cit. above, n. 11, p. 29.

13 Op. cit. above, n. 11, p. 27.

14 Normal flow was defined as the average flow of a public stream between the first of May and the last day of October. Act No. 11 of 1910, s. 2.

15 Ibid.

16 Ibid. s. 15 (1).

17 See Sir A. W. Pim, Financial and Economic Situation, Cmnd 4114, 1932.

18 By 1939, the combined value of tin and gold exports constituted only 27 per cent, of the total value of exports, compared with over 47 per cent, in 1920. By 1949, asbestos was the only major mineral export, and it did not require anything like the amount of water required by tin and gold. (Figures from A. C. G. Best, The Swaziland Railway: a Study in Politico-Economic Geography, 1966, 99 and 167.)

19 Case No. 2 of 1949 and Case No. 3 of 1954 (Water Court records, High Court Records room, Mbabane).

20 In Case No. 2 of 1949, it was felt by the Board that, since there was a large area of potentially irrigable riparian land in the area, only one-half and not two-thirds (as had been the application) of the river would be awarded. In Case No. 3 of 1954, an amount which was equivalent to one-half of the then estimated normal flow was awarded.

21 Investigations in Swaziland, Report for the Financial and Economic Mission to the High Commission Territories, 1954, 8, 22, 24 and 25.

22 Although he did not believe that proportionate sharing would actually become necessary on the larger rivers for many years—except on the Komati, where one estate had been awarded almost the entire available dry-season flow. C. G. Hall, Report on the Inquiry concerning the Water Law of Swaziland, 1954, 5 and 6.

23 Ibid, at 11.

24 Act No. 54 of 1956.

25 Set up by virtue of Proclamation 11 of 1949.

26 Report of the Meeting of the Reconstituted European Advisory Council, 27 May, 1958, p. 36.

27 Act No. 73 of 1959, ss. 2 (definition of “existing right”), 4 (a) and 9 (4) (b). The Act did, however, retain the category and definition of “surplus flow” that was in the 1910 Proclamation. The Act gave riparians the right to a reasonable share of the normal flow (which category included surplus flow) for agricultural purposes, although (as stated) existing rights, awards and uses were protected. For the consequences of this see below, p. 141.

28 Ibid. ss. 9 (2) (b) and 9 (4) (b).

29 H. A. W. Morrice, Irrigation in Swaziland, 1958, argued that government control was necessary not only to combat the evident wastage of water by existing users but also because dry-season supply would soon be insufficient to provide for the full demands of irrigators (p. 1).

30 See n. 2, above.

31 Telegram from C. R. Latimer, High Commissioner's office to London, 15 July, 1959—from file 1098 IIA, Swaziland National Archives, Lobamba.

32 Act No. 79 of 1959, Pt. V.

33 Report of an Economic Survey Mission, 1960, 458–461.

34 Ibid. at 458.

35 A practice that was upheld by the decision in Regina v. Rantenbach, Case No. 40 of 1964, Manzini Magistrate's Court (unreported).

36 T. Brinkman, (Government Secretary) “Water rights in Swaziland”, 1963, 1, from file no. 11, Water Court records, High Court, Mbabane.

37 Act No. 79 of 1959, ss. 24 and 25.

38 Noted by C. W. Thompson, Irrigation in Swaziland, Department of Agriculture Bulletin 11, 1964, 2. For comments on apportionments suits in South Africa, see C. G. Hall and A. P. Burger (cited in n. 2, above), 120–124.

39 By virtue of Act No. 79 of 1959, s. 7.

40 Report of the Commission of Inquiry into the Water Laws of Swaziland, 1965, 29.

41 No. 10 of 1963, Pt. III—see L. C. Benckendorf “Memorandum on Part III of the Electricity Proclamation”, Ministry of Works, Power and Communications (hereinafter M.W.P.C.), Mbabane (undated).

42 Declared on 19 May, 1964.

43 Benckendorf, op. cit.

44 Report of the Commission of Inquiry into the Water Laws of Swaziland, 1965, 40.

45 See Senate Debates, 30 April, 1970, 61. This change of priority suited the Government, since it would have enabled a reasonable share to be allocated to undeveloped riparian Swazi Nation land, over and above the small amounts being used at the time (see below, pp. 142ff).

46 Act No. 25 of 1967.

47 Ibid.s.69(2)(a)–(c).

48 Ibid. s. 69 (1).

49 Ibid. s.69 (2) (b).

50 The Board, in terms of s. 26 would be comprised of representatives of industry, agriculture (including the Swazi Nation sector) and civil servants. Its powers were very similar to its Kenyan equivalent—see Cap. 372, Laws of Kenya, Water Ordinance of 1962, Pt. IV.

51 Act No. 25 of 1967, s. 69 (2) (c). Although it was the intention of the legislature to give priority to riparian users, the wording of s. 69 (2) (c) meant that any existing beneficial user was entitled to priority.

52 Ibid. s. 69 (4) (a)–(c).

53 The assumption of both this subsection and the provisions of the amended South African Water Act No. 54 of 1956 (s. 62 (2) bis) on which it was based, was that sufficient water would be available over and above the reasonable needs of all existing users, to facilitate an allocation to all riparians for future development. The South African amendments were introduced to safeguard the rights and investments of those riparian landowners who had not irrigated any of their land at the time of control being declared (see South African House of Assembly Debates, Vol. 108, No. 61, pp. 6810–6815 and 7034–7103). The Swaziland Commission of Inquiry realised that the Board would be required to “determine the total quantity of water available … which is to be apportioned … to the general body of riparian irrigators for future development (if any) “—see Report (cited above, n. 44), 40. In effect, all riparians would have their abstract rights protected; only those who were beneficially using water would be given the quantity that, theoretically, a Water Court would allocate; those riparians that were not exercising their rights would be given an amount if there was any left over after existing users (including non-riparian award holders) had been allocated water, and after the government had decided whether or not to reserve any quantity of normal flow.

54 Proclamation 11 of 1910, s. 11 (2).

55 Proclamation No. 44 of 1944, s. 9 (y) followed by Proclamation No. 79 of 1950, s. 9 (y).

56 Proclamation No. 79 of 1959, ss. 2 and 6 (4) and Act No. 25 of 1967, ss. 2 and 5 (6).

57 Seen n. 53 above.

58 White Paper on the Water Bill, 1966, 2.

59 Unless, of course, the amount of “available water” was adjusted—see below, pp. 148–9.

60 “The Sugar Project”, undated, unnumbered report of Proceedings at a Meeting of the King-in-Council and the Secretary for Swazi Affairs at Lozitha, 28 September, 1960. Filed in box 1098 IIA, Swaziland National Archives, Lobamba.

61 Ibid. at 2.

62 By 1968, total irrigated land amounted to 77,000 acres, of which the three main canal systems (using water rights described above, p. 139) accounted for 44,000 acres, and the 230 smallest schemes accounted for 20,000 acres. S.N.I, irrigation was said to total 5,000 acres in the same year, but this was almost certainly overestimated (figures from G. Murdoch “Soils and land capability in Swaziland”, 1969, unpublished Ph.D. Thesis, Edinburgh University, 87–91). In 1963, the Department of Agriculture annual report set the S.N.L. acreage at 2,000 (p. 21).

63 See “Apportionment of water” (document dated, 1 April, 1968) file W.A.B.1/1, M.W.P.C., Mbabane. This agreement limited the level of abstractions upstream of the intake of a bank-financed hydro-electric project.

64 By virtue of Act No. 25 of 1967, s. 69 (2) (c). The Board also interpreted this subsection in such a way as to enable it to disregard quantities allocated by virtue of previous awards (see s. 69 (4) (c).

65 See n. 63, above.

66 File WAB I/I, M.W.P.C., Mbabane.

67 “Cusecs” are cubic feet per second. Actual water use on S.N.L. was estimated to be 16 cusecs from both rivers in 1965—source: Letter from G. Murdoch to Secretary, Swazi Nation Council, 31 May, 1965.

68 See n. 63, above.

69 Proceedings of a meeting at Malkerns on 17 June, 1969. From file W.A.B.I/I M.W.P.C., Mbabane. The Board stated that, until the Swazi Nation fully utilised its Apportionment, some of its water would be available for use by the Canal participants.

70 Ibid. at 4. The farmers argued that since they were entitled to an Apportionment under s. 69 (2) (c)—see above, n. 51—the Board (if it apportioned in the way that a water court would have done) could not vary an Award and would be bound by it (see Hall and Burger, op. cit.).

71 Award holders would no longer be entitled to an Apportionment, under s. 69 (2) (c), of the quantity that the Board thought a water court would give.

72 Minutes of a meeting of the Water Apportionment Board, 19 June, 1970, 2; file W.A.B. I/I, M.W.P.C., Mbabane. The allocation of an amount of water that is related to that quantity needed for efficient irrigation of a unit of land is a common means of assessing water rights in a permit system. See Teclaff, op. cit.

73 Act No. 40 of 1970, s. 5 (4) (b) which became the amended s. 69 (2) (b) of Act No. 25 of 1967.

74 Ibid.

75 Minutes of a meeting of the Water Apportionment Board, 18 December, 1970, 1; file W.A.B.I/II, M.W.P.C., Mbabane.

76 Pointed out by a Ministry of Agriculture official in a Memorandum to the Board dated 10 July 1969. From file W.A.B.I/11, M.W.P.C., Mbabane.

77 Apportionment in Government Gazette of 16 March, 1971. The Government reserved 7·5 cusecs on both rivers.

78 Revealed by analysis of flow and abstraction charts carried out by the writer at the Water Resources Branch, M.W.P.C., Mbabane.

79 By virtue of Act No. 25 of 1967, s. 69 (5) (a).

80 Estimates by the writer suggest that the overall company water duty is in the region of 60 acres to one cusec.

81 Pricing of water can have this effect—see World Bank, “Pricing as a means of controlling the use of water resources”, pp. 659–669 of Proceedings of the U.N. Water Conference, 1978.

82 See Government Gazettes 2 January, 1970 (declaration), and 2 December, 1974 (apportionment).

83 U.N.D.P./F.A.O./Engineering and Power Development Consultants, “General Plan for the development and utilisation of water resources”, 1970.

84 For crops grown below 1750 feet, one cusec was deemed sufficient to irrigate 80 acres and above this altitude one cusec was deemed sufficient for 90 acres.

85 Since insufficient flow records existed for the Usutu, the calculation of the amount of water in the river September at least 80 per cent. of the time (the technical definition of normal flow adopted by the Board) was done by a correlation exercise with another river's flows—and worked out at 260 cusecs (source: interview with Senior Water Engineer, M.W.P.C., Mbabane, 14 November, 1980). The Swazi technical definition of normal flow should be compared with that used for South African G.C.W.A.s, of the average amount exceeded 70 per cent. of the time in the dry months of July to October. On the whole, however, the South African system appears to be far less generous to prior-rights holders—see for example “Voorstelle in Verband met die kepaling van waterregte in die Tugelarivier” (October, 1980), Technical report, South African Department of Water Affairs—although the absence of large non-riparian awards and the apparent surplus of normal flow over prior-dated demands, does enable water to be allocated to all riparians relatively painlessly (see Government Gazette Notice No. 1190 of 13 June, 1980— Umgeni G.W.C.A., and Government Gazette Notice No. 1431 of 11 July, 1980); also, Department of Water Affairs “Aspoort G.W.C.A.—water rights for properties riparian to the Doring River” (1972) where there was “more than enough water for development to full potential” (p. 11). Furthermore, late developing tribal areas are catered for to the extent that irrigable riparian land exists in those areas for which water exists over and above the needs of existing users. Officials at the Department of Water Affairs also maintain that the 10 per cent. government reserve that is taken out of normal flow before apportionment, is earmarked for future Tribal Schemes (source: interview 10 December, 1980).

86 In accordance with Act No. 25 of 1967 s. 69 (4) (a)—decided at a meeting of the Water Apportionment Board on 28 November, 1972; from file W.A.B.I/111. The system finally adopted was that each proprietor entitled to water (in effect, each existing user) would be given a maximum entitlement (as calculated by his irrigated acreage divided by the water duty) and this would be expressed as a percentage of the normal flow. When river flow fell below normal, the abstractor would be entitled to his percentage of the actual flow. Factorial increases were allowed to be applied to the maximum entitlement in summer months when requirements, and flow, increased, if sufficient flow was available. The meaning of surplus water was changed in s. 2 of the 1967 Act, and means simply any public water other than the normal flow. Permits for its use are issued to irrigators in quantities sufficient to supply reasonable beneficial requirements, and are given for certain flow levels. If flows fall below these levels, abstraction must cease, so there is not pro-rata reduction as in the case of normal flow. This lack of proportional sharing of shortages in so far as surplus water is concerned reflects South African Water Law principles—see W. I. Vos, Elements of South African Water Law, 1968, 4.

87 Minutes of the meeting of the Board (n. 86, above), 1.

88 In terms of Act No. 25 of 1967, s. 69 (4) (e).

89 See Government Gazette, 20 December, 1974.

90 Ibid.

91 The problem with estates is that they tend to be very capital-intensive—only 3,000 workers are permanently employed on the 20,000 acres under irrigation from the Mbuluzi. This contrasts with estimates made in a feasibility study of a scheme using water from the Mbuluzi (at the same location as the above-mentioned estate) that a family of six workers would be required for every 8 acre irrigated smallholding, i.e. the equivalent of 15,000 workers on 20,000 acres. See Government of Swaziland/Watermeyer, Legge, Piesold and Ullman Umbeluzi Basin Report, Vol. 2, Feasibility Studies (1972) and Vol. 1, Development Plan (1971). Also South African Sugar Journal, April 1978, 185.

92 Gazetted on 16 January, 1976.

93 Case No. 1 of 1928, Water Court records, High Court records room, Mbabane.

94 Ibid.

95 Stated as such in “Ministry of Agriculture's presentation to the Rural Development Committee on the Ingwavuma River basin study” Ref. 82/1/1 from Ngwavuma G.W.C.A. file, Water Resources Branch, M.W.P.C., Mbabane.

96 Case No. 3 of 1954. These terms, derived from the 1910 Proclamation became “normal” and “surplus” flow respectively after 1967—not explicitly, but via the protection of existing rights in Act No. 25, 1967, ss. 2 and 4.

97 Apportionment is in Government Gazette of 23 June, 1978.

98 “Water Law revision”, memo from Economic Planning Department (1973) in file W.A.B.I/V, MWIC., Mbabane.

99 The Government did, and still does, have legal power (by virtue of s. 75 of the 1967 Act), to charge variably for water permits (as the 1965 Commission of Inquiry had stipulated at p. 9). However, the Board not only felt that it was difficult to issue permits without satisfactory guarantees about cross-border flows from South Africa (see “International rivers—Swaziland's position”, 1973, M.W.P.C. Memorandum, Ch. 8), but was also persuaded by a number of sugar-cane growers that the recently introduced sugar-levy was equivalent to a water charge; and that, owing to the then prevailing low world-market sugar price, any increase in their production costs would lead to cutbacks in the area irrigated and an appropriate loss of jobs. (Source: interview with Senior Water Engineer, M.W.P.C., Mbabane, on 12 August, 1980.)

page 147 note 1 Besides that redistribution being effected by the Swazi Nation authorities buying up land to which water had been apportioned—which was being used exclusively for capital intensive estates.

page 147 note 2 Both of which would have led to fierce opposition from powerful interests in the agricultural sector.

page 147 note 3 F.J.Trelease,A Proposed National Water Resources LAW for Swaziland—Discussion Draft, 1974, x.

page 147 note 4 Draft Water Resources Order (1974) held at M.W.P.C., Mbabane.

page 148 note 5 See A. J. B. Hughes, Land Tenure, Land Rights and Land Communities on Swazi Nation Land, 1972, 223.

page 148 note 6 At n. 53.

page 148 note 7 The sine qua non of any development is, the writer suggests, an agreement with South Africa (and Mozambique) to guarantee certain levels of cross-border flows.

page 148 note 8 It is assumed that existing capital intensive estates are unlikely to be converted to smallholder schemes in the near future, and that future private schemes on T.D.L. will be as capital-intensive as they have been in the past.

page 149 note 9 As is done in South Africa—see Report of Commission of Enquiry into Water Affairs, 1972.

page 149 note 10 Such as for T.D.L. and S.N.L. users, capital-intensive and smallholder schemes, less and more efficient users.