The regulation of water in Namibia in the context of property rights : a comparison with South African water legislation

[摘要] The Water Resources Management Act 24 of 2004 will change the water regime inNamibia dramatically. Section 4 of the Water Resources Management Act providesfor this change by excluding private ownership of water from the new water lawdispensation.This study focused on section 4 of the Water Resources Management Act and theimplication that this section will have on property rights in the Namibia. Thedissertation firstly outlines the historical development of ownership of water inNamibia. It is indicated that private ownership of water was an established principleunder Roman-Dutch law. A further examination of Roman-Dutch law reveals thatsurface water could be divided into private and public water. Public water belongedto the whole nation, while ownership of private rivers was vested in the land owner.Under South West Africa's water legislation, the Irrigation and Water ConservationAct 8 of 1912 and the Water Act 54 of 1956 maintained the distinction betweenpublic and private water. However, the Water Act of 1956 expanded the definitions ofboth public and private water, and acknowledged that the land owner where thewater found its source or flowed over, could exercise the exclusive use rights of suchwater.The Water Resources Management Act has been approved and published in theGovernment Gazette. However, it has not yet come into force as a date forcommencement of the Act, as prescribed by section 138(1)(b), has not yet beendetermined by the Minister. Once the Act is in force, the Water Act will be repealedas a whole. Section 4 of the Water Resources Management Act will abolish theprivate ownership of water in Namibia. This is clearly in violation of article 16 of theNamibian Constitution of 1990, which provides for private ownership of water whenread with article 100. Therefore, the research concludes that the Water ResourcesManagement Act will dramatically affect property rights in Namibia. Under the WaterResources Management Act there will be no private ownership of water, and theaffected person will have no recourse under the Act to claim compensation.

[发布机构] North-West University